[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87904-87928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27640]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, and 77

[Docket No. MSHA-2018-0016]
RIN 1219-AB91


Safety Program for Surface Mobile Equipment

AGENCY: Mine Safety and Health Administration (MSHA), Department of 
Labor.

ACTION: Final rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA or the Agency) 
is requiring that mine operators develop, implement, and update, 
periodically or when necessary, a written safety program for surface 
mobile equipment (excluding belt conveyors) at surface mines and 
surface areas of underground mines. The written safety program must be 
developed and updated with input from miners and their representatives. 
The written safety program must include actions mine operators will 
take to identify hazards and risks to reduce accidents, injuries, and 
fatalities related to surface mobile equipment. The final rule offers 
mine operators flexibility to devise a safety program that is 
appropriate for their specific mining conditions and operations.

DATES: 
    Effective date: The final rule is effective January 19, 2024.
    Compliance date: Compliance with this final rule is not required 
until July 17, 2024

FOR FURTHER INFORMATION CONTACT: S. Aromie Noe, Director, Office of 
Standards, Regulations and Variances, MSHA, at <a href="/cdn-cgi/l/email-protection#7f31101a512c101118523e1a513e3f1b101351181009"><span class="__cf_email__" data-cfemail="6927060c473a06070e44280c4728290d0605470e061f">[email protected]</span></a> 
(email), 202-693-9440 (voice) or 202-693-9441 (facsimile). These are 
not toll-free numbers.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Introduction
II. Section-by-Section Analysis
III. Executive Order 12866 (Regulatory Planning and Review), 
Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review)
IV. Regulatory Flexibility Analysis (RFA) and Small Business 
Regulatory Enforcement Fairness Act (SBREFA) and Executive Order 
13272: Proper Consideration of Small Entities in Agency Rulemaking
V. Paperwork Reduction Act of 1995
VI. Other Regulatory Considerations
VII. References

I. Introduction

A. Regulatory Authority

    This final rule is issued under section 101 of the Federal Mine 
Safety and Health Act of 1977 (Mine Act), as amended. 30 U.S.C. 811.

B. Background

    A variety of mining equipment is used at surface mines or in 
surface areas of underground mines. Surface mining vehicles can be very 
large (many can be several stories tall) and are capable of destroying 
smaller vehicles that cannot be seen by the vehicle operators. 
Accidents involving mining equipment are a leading cause of fatalities 
at mines, although fatalities involving powered haulage equipment, a 
type of mobile equipment, decreased in 2022.<SUP>1 2</SUP> To reduce 
the number of accidents, injuries and fatalities at mines, MSHA 
implemented several powered haulage initiatives--for example, 
conducting safety awareness campaigns, providing powered haulage 
guidance and technical assistance, and disseminating training materials 
and best-practices information that addresses powered haulage safety. 
Despite these efforts, in 2023, machinery (mobile) accidents have still 
accounted for a significant number of mining fatalities.
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    \1\ Accidents at mines are classified by MSHA based on the 
Agency's ``Accident Investigation Procedures Handbook,'' which 
defines 21 categories of mine-related accidents. Most accidents 
involving mining equipment are classified under one of two MSHA 
accident categories--powered haulage accidents or machinery 
accidents--depending on the type of equipment involved. For more 
information, please see MSHA Accident Investigation Procedures 
Handbook, December 2020, Appendix 7, Accident Classifications--
available at https:/arlweb.msha.gov/READROOM/HANDBOOK/PH20-I-4.pdf.
    \2\ MSHA Fatality Reports, https://www.msha.gov/data-and-reports/fatality-reports/search?page=2.
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    On July 20, 2021, for example, MSHA hosted a national ``Stand Down 
for Safety Day'' to focus on powered haulage accidents and vehicle 
rollovers to help educate miners, save lives, and prevent injuries.\3\ 
On that day, Mine Safety and Health Enforcement (MSHE) and Educational 
Field and Small Mine Services (EFSMS) staff visited mines to meet with 
miners and operators to increase awareness of powered haulage hazards 
and the need to be familiar with and follow mine-safety best practices.
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    \3\ More information on MSHA's ``Stand Down for Safety Day'' can 
be found on MSHA's website at https://blog.dol.gov/2021/07/14/stop-powered-haulage-accidents-stay-alert-stay-alive.
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    On February 28, 2022, MSHA announced its ``Take Time, Save Lives'' 
campaign to remind mine operators to train miners and ensure miners can 
take their time to prevent accidents and injuries and to save lives.\4\ 
As part of the campaign, mines across the country received a poster to 
display at mine sites with steps operators and miners can take to stay 
safe, including actions related to working around powered haulage 
equipment and wearing seat belts.
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    \4\ More information on MSHA's ``Take Time, Save Lives'' 
campaign can be found on MSHA's website at https://www.msha.gov/take-time-save-lives.
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    In addition, over the years, MSHA has developed a wide variety of 
mine safety and health materials and has made them available on the 
Agency's website (http://www.msha.gov) and mobile app.\5\ These 
materials are intended to assist trainers and mine operators in 
promoting a safe and healthy environment, and among other topics, they 
cover safety topics related to mobile equipment at surface mines. For 
example, MSHA issued Powered Haulage Equipment Guidance in 2021 
intended to help prevent accidents associated with working with, on, or

[[Page 87905]]

near powered haulage equipment.\6\ MSHA also launched an enforcement 
initiative focused on powered haulage by issuing guidance on preventing 
accidents and meeting with mine personnel to emphasize best safety 
practices and training.
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    \5\ MSHA's Miner Safety & Health App gives miners and mine 
operators instant access to information that can help keep them safe 
and healthy on the job. The app provides important safety alerts, 
safety and health best practices that apply to their daily work, 
information on their rights and responsibilities, and the ability to 
contact MSHA with a question or to report an accident or hazard. The 
app is available for free on Android and iPhone mobile devices and 
can also be found at the respective app stores by searching for 
``Miner Safety & Health.'' More information can be found on MSHA's 
website at https://www.msha.gov/miner-safety-health-application.
    \6\ More information on MSHA's Powered Haulage Safety Initiative 
can be found on MSHA's website at https://www.msha.gov/safety-and-health/safety-and-health-initiatives/powered-haulage-safety. MSHA's 
guidance on mitigating and preventing powered haulage equipment 
accidents, entitled ``Powered Haulage Equipment Safety Guidance,'' 
can be found on MSHA's website at https://www.msha.gov/sites/default/files/events/Powered%20Haulage%20Guidance.pdf.
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    In April 2022, to complement the Agency's awareness initiatives, 
the Agency implemented an Enhanced Enforcement Program to help improve 
safety and health in the mining industry. As a part of MSHA's regular 
inspections, this program focuses on task training and hazard training 
for customer and contract truck drivers and task training for managers 
and supervisors who perform mining tasks. For example, MSHA inspectors 
will observe truck drivers and focus on enforcing existing standards 
necessary to ensure that they perform tasks in a safe manner at mines.

C. Rulemaking History

    As part of its overall effort to improve safety in the use of 
mining equipment, MSHA published a request for information (RFI) on 
June 26, 2018, entitled Safety Improvement Technologies for Mobile 
Equipment at Surface Mines, and for Belt Conveyors at Surface and 
Underground Mines (83 FR 29716). The RFI focused on technologies for 
reducing accidents involving mobile equipment at surface mines and 
surface areas of underground mines and belt conveyors at surface and 
underground mines. The RFI requested information on what types of 
engineering controls are available, how to implement engineering 
controls, and how these controls could be used on mobile equipment and 
belt conveyors to reduce accidents, fatalities, and injuries. MSHA 
sought information on technologies, controls, and training that provide 
additional protection from accidents related to mobile equipment 
operation and working near or around belt conveyors.
    To encourage additional public participation, the Agency held six 
stakeholder meetings and one webinar in August and September 2018. The 
meetings were held in Birmingham, Alabama; Dallas, Texas; Reno, Nevada; 
Beckley, West Virginia; Albany, New York; and Arlington, Virginia.
    Commenters responding to the RFI supported MSHA's focused efforts 
to improve miner safety related to the operation of mobile equipment at 
surface mines and in surface areas of underground mines. Some 
emphasized the use of technologies to achieve this goal, such as the 
use of new technologies and the use of current technologies (e.g., 
collision avoidance systems, collision warning systems, and seat belt 
warning signals used in automobiles). Others supported the importance 
of non-technological interventions, such as safety programs, to bring 
about behavioral and cultural changes. Commenters differed in how 
technological and non-technological interventions should be 
implemented. Some commenters noted that the application of engineering 
controls or technologies needs further review by MSHA and the National 
Institute for Occupational Safety and Health (NIOSH) before any 
regulatory changes are made. Other commenters suggested that the use of 
new technologies has the best outcomes when mine operators and their 
employees partner with other stakeholders such as NIOSH and equipment 
manufacturers.
    In addition, one commenter underscored the importance of safety 
culture at a workplace. This commenter observed that mine operators who 
develop and implement safety programs do so with the goal of preventing 
injuries, fatalities, and the suffering these accidents cause miners, 
their families, and their communities. The commenter noted that for 
these mine operators, preventing harm to their miners is more than just 
compliance with safety requirements; it reflects a culture of safety. 
According to the commenter, this culture of safety derives from a 
commitment to a systematic, effective, and comprehensive approach to 
safety management at mines with the full participation of miners.
    On September 9, 2021, MSHA published the proposed rule, Safety 
Program for Surface Mobile Equipment (86 FR 50496). In addition to 
information gathered from stakeholders who commented on the RFI, MSHA 
based the proposed rule on best practices and guidance on workplace 
safety programs.\7\ The comment period closed on November 8, 2021. On 
December 20, 2021, in response to a public request, MSHA reopened the 
rulemaking record for additional comments, and the Agency held a 
virtual public hearing on the proposed rule on January 11, 2022 (86 FR 
71860). The comment period closed on February 11, 2022.
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    \7\ As part of the proposed rule, MSHA reviewed safety program 
guidance materials from several types of organizations: (1) 
consensus standards organizations (e.g., American Society of Safety 
Professionals (ASSP), Occupational Health and Safety Management 
Systems, ANSI/ASSP Z10-2012 (R2017); and the International Standards 
Organization (ISO), Occupational Health and Safety Management 
Systems--Requirements With Guidance for Use (ISO 45001:2018)); (2) 
industry organizations (e.g., the National Mining Association's 
CORESafety and Health Management System); and (3) government 
agencies (e.g., the Department of Transportation, 49 CFR part 270). 
The Department of Labor's Occupational Safety and Health 
Administration (OSHA) also has developed recommended practices for 
developing safety and health programs (https://www.osha.gov/shpguidelines/). 86 FR 50498.
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    MSHA's proposed rule addresses hazards related to surface mobile 
equipment (except belt conveyors) used at surface mines and surface 
areas of underground mines. Surface mobile equipment in the proposed 
rule refers to wheeled, skid-mounted, track-mounted, or rail mounted 
equipment capable of moving or being moved and any powered equipment 
that transports people, equipment, or materials, excluding belt 
conveyors, at surface mines and surface areas of underground mines. 
Examples of this equipment include bulldozers, front-end loaders, skid 
steers, excavators, draglines, graders, and haul trucks.
    The proposed rule would require a written safety program for 
operators employing six or more miners. The proposed written safety 
program would list actions that mine operators would take to identify 
hazards and reduce risks, develop equipment maintenance and repair 
schedules, evaluate technologies, and train miners. The proposal would 
provide mine operators with the flexibility to tailor the written 
safety program to meet the needs of their operations and unique mining 
conditions. Under the proposal, mine operators would be required to 
evaluate and update the written safety program whenever necessary to 
appropriately manage safety risks associated with their surface mobile 
equipment.
    MSHA received comments on the proposed rule from miners, safety 
associations, mining associations, mining companies, manufacturers, 
labor unions, and trade associations. (Public comments and supporting 
documentation submitted were posted on MSHA's website and at 
www.regulations.gov, along with the transcript from the public 
hearing.) Commenters supported MSHA's efforts to ensure the safety of 
all miners from powered haulage accidents. After considering the 
comments, for the reasons discussed further below, MSHA

[[Page 87906]]

is adopting the proposed rule with modifications. MSHA has addressed 
comments more fully in the next section, Section II, Section-by-Section 
Analysis, of this preamble.

II. Section-by-Section Analysis

A. Sections 56.23000, 57.23000, and 77.2100--Purpose and Scope

    Final Sec. Sec.  56.23000, 57.23000, and 77.2100 address the 
purpose and scope of the final rule. Like the proposal, final 
Sec. Sec.  56.23000, 57.23000, and 77.2100 state that the purpose of 
the safety program is to reduce the accidents, injuries, and fatalities 
related to the operation of surface mobile equipment, promote and 
support a positive safety culture, and improve miners' safety at the 
mine. Unlike the proposal, all mine operators are required to develop, 
implement, and update a written safety program for surface mobile 
equipment used at surface mines and surface areas of underground mines. 
The final rule is changed from the proposal to cover operators with 
five or fewer miners. After reviewing comments and data, the Agency 
determined that operators of these mines need to develop a written 
safety program to address surface mobile equipment at their operations 
to protect their miners. MSHA intends to provide compliance assistance 
where necessary.
1. Mines Covered by the Proposal--Mines Employing 6 or More Miners
    In the proposal, Sec. Sec.  56.23000, 57.23000, and 77.2100 would 
require mine operators with six or more miners to develop a written 
safety program. In the proposed rule, MSHA also requested comment on 
potentially requiring mines with five or fewer miners to develop a 
written safety program. Safety Program: Surface Mobile Equipment, 86 FR 
50,496, 50,500 (Sept. 9, 2021).
    Commenters stated that all mine operators, regardless of the number 
of miners employed, should be required to have a written safety program 
and that miners at small operations need the same protections as miners 
at larger operations. Several commenters stated that, regardless of 
whether a facility employs one miner or one hundred miners, each 
individual should be protected equally. One commenter stated that even 
though data may indicate that serious accidents occur less frequently 
at smaller operations, all miners and operations should still be 
covered because the hazards involving surface mobile equipment pose a 
risk for all miners. Several commenters stated that applying the rule 
to all mines, regardless of the number of miners employed, will 
minimize confusion, enhance safety practices, and increase consistency 
across mines and throughout MSHA enforcement. One commenter stated that 
the Mine Act does not set a threshold for how many miners must be 
employed at a mine in order for it to be subject to a standard, and as 
such, operators with five or fewer miners should not be excluded. 
Several commenters supported MSHA's goal to minimize the burden on 
small operations, but they did not believe that a mobile equipment 
safety program will present an undue economic burden on operators with 
five or fewer miners if MSHA provides clear guidance regarding what is 
expected.
    In response to comments, MSHA reviewed recent data from 2011 to 
2020 on fatalities and injuries and accident investigation reports. 
Based on that review, MSHA determined that the fatality rate for mines 
with five or fewer miners is greater than that for larger mines. MSHA 
found that from 2011 to 2020, the average fatality rates (or fatal 
incidence rate) per 200,000 working hours were as follows: 0.0227 at 
mines with 5 or fewer employees; 0.0167 at mines with 6 to 20 
employees; 0.0103 at mines with 21 to 100 employees, and 0.0079 at 
mines with more than 100 employees. See Table II-1.

                        Table II-1--Fatality Rates (or Fatal Incidence Rates), 2011-2020
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                                                                   Mine size (based on all mine employees)
                                                            ----------------------------------------------------
                                                              5 or fewer    6 to 20     21 to 100    101 or more
                                                              employees    employees    employees     employees
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Fatalities at Surface Mines and Surface Areas of                      25           65           47            44
 Underground Mines (10-year total) \1\.....................
Hours worked at Surface Mines and Surface Areas of                 220.5        776.9        912.6       1,110.6
 Underground Mines (10-year total in millions) \2\.........
Fatal Incidence Rate (or Fatality Rate) per 200,000 Working       0.0227       0.0167       0.0103        0.0079
 hours \3\.................................................
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\1\ Includes fatalities of miners (including contract miners and office workers) that occurred at surface mines
  and at surface areas of underground mines.
\2\ Includes hours worked by miners (excluding contract miners) at surface mines and at surface areas of
  underground mines. Does not include hours worked at facilities.
\3\ (Number of Fatalities x 200,000)/Hours Worked = Fatality Rate.
Note: Table excludes fatalities and work hours reported at facilities.

    Based on the analysis and comments, the final rule requires a 
written safety program for all mines. MSHA agrees with comments that 
the Mine Act requires that miners' safety and health must be protected 
no matter how many employees work at the mine. The Agency concludes 
that applying the final rule to all mines will provide improved safety 
for all miners.
    MSHA will provide compliance assistance through the Agency's EFSMS 
staff to all mines. MSHA will also encourage state grantees to focus on 
providing training to address hazards and risks involving surface 
mobile equipment in small mining operations. In addition, MSHA will 
provide assistance to small mine operators in the form of additional 
training materials, education, technical assistance, and work with 
mining industry stakeholders as it develops materials and templates to 
assist mine operators. Also, MSHA is implementing a 6-month delayed 
compliance date from the effective date to provide mine operators, 
especially small mine operators, sufficient time to identify and 
acquire, if necessary, the needed resources to comply with this final 
rule.
2. Belt Conveyors
    The proposed rule did not include belt conveyors in the definition 
of surface mobile equipment. MSHA received comments on whether to 
include or exclude belt conveyors from the definition of surface mobile 
equipment and whether belt conveyors should be covered under this rule. 
Some commenters stated that belt conveyors should be included in the 
scope of the rule and that a written safety program

[[Page 87907]]

should be developed and implemented to include them. One commenter 
reviewed accident and injury data and stated that many fatalities are 
associated with belt conveyers. Several commenters stated that 
technologies and controls exist that can help prevent accidents, for 
example: devices that can sense a miner's presence in hazardous 
locations, properly installed machine guards, and properly locked-out 
and tagged-out machines undergoing maintenance. According to these 
commenters, MSHA should require a written safety program for belt 
conveyors just as it is requiring one for mobile and powered haulage 
equipment.
    Several commenters agreed with MSHA's exclusion of belt conveyors 
from the proposed rule. The commenters stated that belt conveyors 
should be addressed separately from powered haulage vehicles because 
they are very different types of equipment and keeping them separate 
would increase clarity.
    Based on the comments, the final rule, like the proposal, excludes 
belt conveyors from the definition of surface mobile equipment. Belt 
conveyors present different safety hazards from those associated with 
surface mobile equipment. Belt conveyors range from a single belt to a 
series of belts spanning miles. All conveyor systems have inherent 
dangers while in motion. Belt conveyor accidents predominantly involve 
entanglements in equipment whereas accidents related to other mobile 
equipment involve striking, colliding, falling, or overtravel while the 
equipment is in operation. MSHA continues to believe that the safety 
issues surrounding the operation of belt conveyors can be better 
addressed through existing standards (e.g., Sec. Sec.  56/57.14107 and 
56/57.14112 for moving machine parts and construction and maintenance 
of guards), best practices, and training. As MSHA does with many other 
types of mining equipment, the Agency provides training resources to 
help operators and miners that include best practices for working 
safely around conveyor systems. These best practices are available on 
the Agency's website at http://www.msha.gov.
3. Underground Areas of Underground Mines
    MSHA proposed to require a written safety program for surface 
mobile equipment at surface mines and surface areas of underground 
mines. Several commenters stated that all areas of underground mines--
meaning both surface and underground areas of underground mines--should 
be included in the scope of the proposed rule. Commenters stated that 
powered haulage accidents happen in underground areas of underground 
mines, not just surface areas. This observation, a commenter pointed 
out, is based on MSHA accident data. One commenter stated that 
underground mining equipment should be expressly excluded from the 
proposed rule even if the equipment is operated on surface areas.
    Like the proposal, the final rule applies to surface mobile 
equipment used at surface mines as well as surface areas of underground 
mines. Surface mobile equipment being used in underground mines and 
only brought to the surface for maintenance or repair, for example, is 
not included in the scope of the final rule.
    A large amount of surface mobile equipment operates at many surface 
mines and surface areas of underground mines, which creates common 
hazards such as striking, collision, and falling. Surface mobile 
equipment tends to be complex and large in size (compared to mobile 
equipment used at underground mines), which generates some unique 
hazards, such as large blind spots for equipment operators. The final 
rule applies only to surface mobile equipment.
    As is the Agency's practice, MSHA will continue to work with 
operators and miners in underground mines to deliver training and best 
practice materials to prevent accidents involving mobile equipment in 
underground areas and to provide safety protections for miners at these 
mines.

B. Sections 56.23001, 57.23001, and 77.2101--Definitions

    Final Sec. Sec.  56.23001, 57.23001, and 77.2101 continue to define 
the terms responsible person and surface mobile equipment in the same 
way as defined in the proposed rule.
    MSHA proposed to define a responsible person as a person with 
authority and responsibility to evaluate and update a written safety 
program for surface mobile equipment. MSHA believes that designating a 
person with authority and responsibility to evaluate and update the 
safety program as necessary will help ensure the successful development 
and maintenance of a safety program that addresses and reduces the 
likelihood of surface mobile equipment hazards at a particular mine. 
This individual should be able to communicate the operator's commitment 
to safety and the importance of miners' involvement in the program to 
prevent or mitigate hazards. The responsible person must communicate 
the goals of the safety program to all miners. The responsible person 
will need to have the experience and knowledge about mining conditions, 
including surface mobile equipment, necessary to evaluate and update 
the written safety program.
    MSHA received comments on this definition. Commenters indicated a 
preference for removing or redefining the term. Some commenters stated 
that the definition is redundant and should be deleted, and that 
operators are already required to designate a responsible person for 
health and safety purposes. Several commenters discussed the 
similarities between the responsibilities and liability burdens of the 
mine operator, as compared to the proposed definition of a responsible 
person. One commenter stated that the definition should be deleted as 
it serves no purpose.
    Other commenters brought up the feasibility of assigning the duties 
to a single individual. For example, one commenter stated its view that 
the proposed rule would require a person that has the knowledge to 
identify hazards on every piece of mobile equipment, the authority to 
make high-level financial decisions, and the responsibility for any 
shortfalls in the program. Still other commenters questioned the 
consequences of assigning the title of ``responsible person'' to a 
single individual because that individual could become temporarily or 
permanently unavailable. One commenter stated that MSHA should amend 
this language to clearly allow for multiple persons to be designated as 
a responsible person. In the commenter's view, there are many practical 
reasons to have additional people in this position. For example, if one 
designee is out sick, on vacation, or leaves the company, there would 
still be a designated responsible person on-site.
    In response to the comments, the final rule requires that each 
operator designate at least one responsible person to evaluate and 
update the written safety program. Under the final rule, the operator 
can designate one person or multiple persons so long as the designated 
persons have the authority and responsibility to evaluate and update 
the written safety program.
    In addition, the final rule, like the proposed rule, defines 
surface mobile equipment as wheeled, skid-mounted, track-mounted, or 
rail-mounted equipment capable of moving or being moved, and any 
powered equipment that transports people, equipment, or materials, 
excluding belt conveyors, at surface mines and surface areas of 
underground mines. This definition is

[[Page 87908]]

adapted from the current definition in 30 CFR 56.2 and 57.2 for metal 
and nonmetal mines: mobile equipment means ``wheeled, skid-mounted, 
track-mounted, or rail-mounted equipment capable of moving or being 
moved.''
    MSHA received comments on the proposed definition of surface mobile 
equipment. Several commenters requested that MSHA clarify the type of 
equipment that would meet the proposed definition. One commenter stated 
that equipment such as push carts, welding carts, cylinder carts, and 
basic hand trucks would be subject to the proposed rule. The commenter 
stated that the rationale to include this type of equipment under the 
definition is unclear. Another commenter stated that certain skid-
mounted equipment such as light towers and substations could be covered 
unintentionally. Another commenter stated that it is unclear whether 
small boats, portable crushers, dredges, etc., are included.
    Several commenters requested further clarification from MSHA on the 
types of equipment to be included in the definition. Commenters 
requested that MSHA provide a finite list of equipment that would be 
included or exempted from the rule. One commenter suggested that MSHA 
create a supplementary, clarifying guidance document.
    After reviewing all the comments, MSHA concludes that the 
definition in this final rule is sufficiently clear about what types of 
surface mobile equipment are subject to a written safety program. 
Surface mobile equipment excludes any manually powered tools, such as 
wheelbarrows, hand carts, push carts, welding carts, cylinder carts, 
basic hand trucks, or dollies for the purposes of this written safety 
program. This definition is consistent with the currently enforced 
definition in 30 CFR parts 56 and 57.

C. Sections 56.23002, 57.23002, and 77.2102--Written Safety Program

    Final Sec. Sec.  56.23002(a), 57.23002(a), and 77.2102(a), like the 
proposal, require each mine operator to develop and implement a written 
safety program no later than 6 months after the effective date of the 
final rule. Three issues raised by commenters are discussed below.
1. Independent Contractors
    Commenters stated that the proposed rule is unclear as to whether 
or not contractors are subject to the requirements. Some commenters 
stated that the proposed rule is silent on whether it covers contractor 
equipment and how such coverage would be implemented in a practical 
sense, and one commenter said that this silence would lead to 
enforcement actions against the mine and/or contractors for 
inconsistencies in how they would comply with the proposed 
requirements. Several commenters stated that MSHA should clarify how 
contractor programs should be integrated with operators' on-site safety 
programs.
    Commenters requested that MSHA clarify that contractors are 
considered operators, and thus would need to have their own written 
safety program. Several commenters stated that the definition of 
``operator'' in section 3(d) of the Mine Act includes ``any independent 
contractor performing services or construction'' at a mine. 30 U.S.C. 
802(d). Several commenters stated that MSHA's regulations at 30 CFR 
part 45, which sets forth procedural requirements for independent 
contractors working at mine sites, state that such requirements exist 
``to facilitate implementation of MSHA's enforcement policy of holding 
independent contractors responsible for violations committed by them 
and their employees.''
    Several commenters stated that it would be untenable to require 
production operators to account for contractor equipment in their own 
safety programs. According to the commenters, contractors often have 
their own equipment and specialized knowledge, so that it would be 
impractical to require the operator to be responsible for the 
contractors' equipment.
    MSHA's intent in the proposed rule was that an operator would mean 
``any owner, lessee, or other person who operates, controls, or 
supervises a coal or other mine or any independent contractor 
performing services or construction at such mine'' as stated in section 
3(d) of the Mine Act. To facilitate implementation of MSHA's 
enforcement policy with respect to certain independent contractors, 
MSHA published regulations in 30 CFR part 45 related to the 
responsibility of independent contractors that met the requirements of 
part 45.
    Consistent with MSHA's part 45 regulations and the Agency's 
longstanding policy regarding independent contractors, this final rule 
requires operators, including contractors with a part 45 identification 
number, to develop and implement a written safety program addressing 
surface mobile equipment. MSHA has a long history and practice of 
enforcing its standards and regulations against operators and 
independent contractors and believes that the industry is familiar with 
and understands this history and practice. Under this final rule, MSHA 
will treat operators and part 45 independent contractors consistent 
with the definition in the Mine Act and the Agency's longstanding 
history and practice.
    MSHA expects that a majority of the Part 45 independent contractors 
will develop and implement their own written safety programs addressing 
their surface mobile equipment and follow the site-specific 
requirements, as necessary, in the operators' written safety programs. 
In some situations, operators may choose to integrate the independent 
contractors' written safety programs into their programs. No matter 
what approach is used, MSHA expects that, in all cases, operators and 
independent contractors will communicate and coordinate with each 
other, as appropriate, to ensure that miners' safety and health is 
protected.
    Final Sec. Sec.  56.23002(b), 57.23002(b), and 77.2102(b), similar 
to the proposal, require each mine operator, within 6 months after the 
effective date of the final rule, to designate at least one responsible 
person to evaluate and update the written safety program. As discussed 
in the definition section, a responsible person is a person with 
authority and responsibility to evaluate and update a written safety 
program for surface mobile equipment.
2. Compliance Date
    The final rule implements a 6-month delayed compliance date from 
the effective date. Commenters provided varying suggestions on the 
proposed effective date. Some commenters suggested that all mine 
operators should have an additional 6 to 12 months without receiving 
citations relating to this rule, for a total of up to 18 months delayed 
effective date. Another commenter suggested a longer time period for 
only those mines that meet the Small Business Administration's size 
standards; therefore, a 6-month delay (as proposed) for larger entities 
and up to an 18-month delay for smaller entities. Some commenters 
agreed with MSHA's proposal that 6 months from the effective date of 
the final rule is sufficient time for operators to develop a written 
safety program.
    The final rule includes a delayed compliance date to allow for 
development and implementation of the written safety program for 
surface mobile equipment. After considering comments and reviewing data 
on accidents, injuries, and fatalities involving surface mobile 
equipment, MSHA determined that 6 months is a reasonable timeframe for 
the development and implementation of the safety program for all mines, 
regardless

[[Page 87909]]

of size. MSHA believes that the 6-month time frame gives operators 
sufficient time to develop a meaningful written safety program, with 
input from miners and their representatives. MSHA has offered and will 
continue to offer materials and information that operators can use in 
developing and implementing a written safety program. MSHA will also 
work with operators, miners, and their representatives as well as other 
stakeholders in the mining industry (e.g., contractors) to develop 
written safety program templates, as well as best practices and 
guidance on the development, implementation, and evaluation of safety 
programs.
3. Approval of the Written Safety Program
    The proposed rule did not require MSHA approval of the operator's 
written safety program. Commenters provided their views on whether MSHA 
should require its approval of operators' written safety programs. 
Several commenters stated that MSHA's approval of the written safety 
program is necessary, and that not requiring MSHA approval would lead 
to inconsistent enforcement by MSHA inspectors. One commenter stated 
that approval by MSHA should be required because the written safety 
programs that are developed without MSHA's oversight or approval would 
be, in the commenter's view, based on the operator's convenience, not 
the miners' health and safety. One commenter stated that MSHA approval 
of the operator's program is needed before it is implemented to ensure 
the adequacy of the individual, site-specific program and to ensure 
that mine operators have the opportunity to be alerted to any possible 
deficiencies in their program prior to MSHA approval. One commenter 
stated that MSHA already approves a number of written programs and 
plans submitted by mine operators, such as roof control plans, ground 
control plans, and ventilation plans. The commenter further stated that 
without MSHA oversight, mine operators will have generic programs that 
will not be mine-specific or include meaningful participation from 
miners and their representatives.
    Other commenters supported MSHA's proposal that required no Agency 
approval of written safety programs. One commenter stated that they 
appreciate MSHA proposing to require a written safety program without 
the Agency's approval, rather than with the Agency's approval. Another 
commenter agreed that not requiring approval is a wise decision because 
it would be burdensome for MSHA to approve tens of thousands of 
programs.
    After considering all comments, MSHA has determined that an 
operator's written safety program will be appropriately reviewed by 
MSHA during regular inspections. During the inspection, MSHA will 
review the written safety program to determine if it reflects actions 
that identify and address surface mobile equipment hazards at mine 
sites and to verify whether input from miners and their representatives 
was sought. This approach will also allow the Agency to ensure that the 
written safety program addresses hazards identified by mine operators 
and miners. MSHA will also determine whether the written safety program 
is adequately evaluated and updated. In light of the Agency's 
inspection presence, MSHA has determined that Agency approval of the 
written safety program is not needed.

D. Sections 56.23003, 57.23003, and 77.2103--Requirements for Written 
Safety Program

    Like the proposal, final Sec. Sec.  56.23003(a), 57.23003(a), and 
77.2103(a) list general, performance-based requirements for the written 
safety program. Under this final rule, an operator's safety program 
must include four types of actions the operators will take to reduce 
accidents, injuries, and fatalities and to improve miners' safety. As 
discussed earlier, this and other provisions in the final rule, unlike 
the proposed rule, clarify the term ``operator'' or ``operators,'' to 
be consistent with section 3(d) of the Mine Act.
    Several commenters stated that the written safety program 
requirement is redundant with provisions already required in the CFR 
and does not provide a new or strategic focus that advances mobile 
equipment safety. These commenters stated that there are existing 
regulations in part 56 that require mine operators to identify and 
correct hazards in all work areas and for all equipment, including 
surface mobile equipment, such as Sec.  56.18002 on the examination of 
working places and Sec.  56.14100 on safety defects; examination; and 
correction of records. One commenter stated that the requirements of 
this section are redundant with the training requirements already set 
forth in part 46, and another commenter stated these requirements are 
redundant with training requirements already set forth in part 48. One 
commenter requested clarification on the specifics of the documentation 
requirement for the review and collection of this information. For 
example, what type of information would meet the requirement, how 
should it be maintained, for how long would it need to be kept, and how 
would MSHA evaluate it for compliance? Another commenter also requested 
additional guidance on the types of safety hazards that should be 
included. One commenter asked how this requirement could be enforced. 
Finally, one commenter fully supported the inclusion of this 
requirement.
    After reviewing comments and relevant information, MSHA believes 
that structuring the final rule to include a performance-based 
requirement to identify and analyze hazards is more appropriate than a 
prescriptive requirement. The performance-based approach in the final 
rule allows operators the flexibility to devise and tailor a safety 
program that is appropriate for their specific and unique mining 
conditions and operations. These actions could include review of 
accident data and information on near misses and any operational or 
maintenance accidents at their mines. For example, under 30 CFR part 
50, mine operators are already required to submit a report of each 
accident, injury, and illness to MSHA within 10 working days after an 
accident or occupational injury occurs or an occupational illness is 
diagnosed. Based on such information and data, mine operators will be 
able to develop a program that more specifically addresses conditions 
at their mines; mining equipment, work locations, and tasks at their 
mine site; and measures to eliminate, prevent, or mitigate identified 
hazards. Regarding the comment asking how this information should be 
maintained and for how long it would need to be kept, further 
discussion of records and inspection requirements is located elsewhere 
in this preamble under Sec. Sec.  56.23004, 57.23004, and 77.2104.
1. Sections 56.23003(a)(1), 57.23003(a)(1), and 77.2103(a)(1)
    Final Sec. Sec.  56.23003(a)(1), 57.23003(a)(1), and 77.2103(a)(1), 
like the proposal, require that the written safety program include 
actions the operator will take to identify and analyze hazards and 
reduce the resulting risks related to the movement and operation of 
surface mobile equipment. Operators are required to identify and 
analyze hazards relevant to surface mobile equipment and to take 
actions to reduce the site-specific risks so that their written safety 
programs can be tailored to their unique mining operations and 
conditions. Actions that mine operators may take include

[[Page 87910]]

enhanced administrative controls such as increased use of signage and 
procedural changes to tasks that remediate identified hazards. Other 
actions may include visibility studies to identify inherent blind spot 
areas around mobile equipment and use of visibility enhancing devices 
such as flags and additional mirrors to minimize these areas. Mine 
operators may choose to change traffic patterns, implement dispatchers 
for certain areas of a mine, and limit or prohibit small vehicular or 
foot traffic in identified high risk areas.
2. Sections 56.23003(a)(2), 57.23003(a)(2), and 77.2103(a)(2)
    Final Sec. Sec.  56.23003(a)(2), 57.23003(a)(2), and 77.2103(a)(2), 
like the proposal, require that the written safety program include 
actions the operator will take to develop and maintain procedures and 
schedules for routine maintenance and non-routine repairs for surface 
mobile equipment.
    Commenters stated that this requirement is redundant when compared 
to existing part 56 and part 57 regulations. Likewise, another 
commenter stated that Sec.  77.404 already addresses the requirements 
that mobile and stationary machinery and equipment be maintained in 
safe operating conditions. Another commenter stated that Sec. Sec.  
77.1600-77.1607 includes extensive rules that address loading and 
haulage, including traffic controls, transportation of persons, berms, 
inspection and maintenance, and operation.
    Another commenter expressed a concern about the ambiguity of the 
requirement, stating that inspectors may be subjective and issue 
violations for failure to follow manufacturers' recommendations. 
Several commenters stated that operators should have additional 
flexibility when it comes to manufacturers' recommendations. In these 
commenters' view, manufacturers' recommendations for maintenance and 
repairs are often not reflective of how the equipment is used at a 
given operation. A commenter noted that recommendations from the 
manufacturer are a valuable resource for equipment operators and 
maintenance personnel, but often are designed to avoid legal challenges 
rather than maximize safe operation. One commenter requested that this 
requirement for maintenance and repairs apply to the safe operation of 
the equipment, rather than all maintenance and repairs in general. 
Another commenter stated that MSHA should make clear that this section 
does not require any new maintenance or repair procedures, but requires 
only that the facility's procedures be reflected (or referenced) in a 
written program.
    Under the final rule, MSHA does not intend for operators to develop 
new maintenance and repair procedures, unless operators do not have 
these in place already. Operators may decide to modify existing 
maintenance and repair procedures based upon newly conducted risk 
assessment findings. The procedures and schedules for maintenance and 
repairs for surface mobile equipment developed for the written safety 
program can reflect or reference the operator's existing procedures and 
schedules.
3. Sections 56.23003(a)(3), 57.23003(a)(3), and 77.2103(a)(3)
    Final Sec. Sec.  56.23003(a)(3), 57.23003(a)(3), and 77.2103(a)(3), 
like the proposed rule, require that the written safety program include 
actions the mine operator will take to identify currently available and 
newly emerging feasible technologies that can enhance safety and 
evaluate whether to adopt them. Examples of these technologies could 
include seat belt interlocks that affect equipment operation when a 
seat belt is not fastened; seatbelt notification systems that alert 
management when the seatbelts are not worn; collision warning systems 
and collision avoidance systems that may prevent accidents by alerting 
equipment operators to hazards located in blind areas; technologies 
that use Global Positioning Systems to provide equipment operators with 
information regarding their location when pushing and dumping material; 
as well as cameras, curvilinear mirrors, and other vision enhancements 
(86 FR 50500).
    Commenters stated that this requirement is ambiguous, burdensome, 
and redundant, and should be stricken from the rule. Several commenters 
stated that: the proposal does not appear to require mine operators to 
implement newly emerging technologies, and, instead, it appears to 
require evaluations. They further stated that most mine operators 
likely already evaluate newly emerging technologies to save money and 
improve safety. Some commenters were concerned that certain terminology 
in the proposal is subjective. For example, commenters stated that MSHA 
needs to elaborate on what types of actions operators should take to 
``evaluate'' how ``newly emerging feasible technologies'' would 
``enhance'' safety. Other commenters stated that there are many areas 
of concern related to testing and implementing new technologies into 
existing equipment, potentially creating safety hazards. Another 
commenter stated that new technologies often have problems when they 
are initially developed. For example, the commenter noted that when 
airbags were first released there were issues causing injuries, and 
thus they had to be redesigned. Another commenter stated that MSHA 
should make clear that the rule does not require the adoption of any 
particular technology but is strictly a requirement that the operator 
have a procedure to identify and evaluate potentially useful new 
technology.
    After considering all comments, the final rule is unchanged from 
the proposal, and it requires that the operator identify and evaluate 
currently available and newly emerging feasible technologies that can 
enhance safety at the mines. MSHA's intent is that operators consider 
feasible technologies that are capable of being used successfully at 
that mine. MSHA recognizes the safety benefits of new and emerging 
technologies related to surface mobile equipment. MSHA believes that 
operators can typically determine what types of new or existing 
technologies that they need to enhance safety at their operations. MSHA 
will offer educational assistance on currently available and newly 
emerging technologies in a number of ways, including through EFSMS, 
industry stakeholders, quarterly stakeholder calls and stakeholder 
meetings, safety and health training workshops (e.g., Training 
Resources Applied to Mining (TRAM) and Spring Thaw Training Workshops), 
guidance documents, and Agency website and mobile app resources. Also, 
as part of the Agency's compliance assistance efforts, MSHA will work 
with operators and provide information and technical assistance that 
will help them identify control options and the use of new technologies 
to prevent accidents and injuries. MSHA will also encourage its state 
grantees to focus on providing training to address feasible 
technologies involving surface mobile equipment in mining operations.
4. Sections 56.23003(a)(4), 57.23003(a)(4), and 77.2103(a)(4)
    Final Sec. Sec.  56.23003(a)(4), 57.23003(a)(4), and 77.2103(a)(4), 
like the proposal, require that the written safety program include 
actions the operator will take to train miners and other persons at the 
mine necessary to perform work to identify and address or avoid hazards 
related to surface mobile equipment.
    Several commenters stated that they already comply with part 46 
requirements and that this section is another example of regulatory

[[Page 87911]]

redundancy and does not provide a new or strategic focus to advance 
mobile equipment safety. One commenter suggested that MSHA make clear 
that the mobile equipment program can refer to other sections of 
regulations relating to mobile equipment and can incorporate these by 
reference, for example Sec. Sec.  46.5(b)(2), 46.6(b)(2), and 46.8(c). 
Another commenter requested that the Agency disambiguate the language, 
``other persons at the mine necessary to perform work,'' by providing 
more precise language. Otherwise, for training purposes, the language 
effectively would expand the definition of ``miner'' to all employees.
    After reviewing the comments, MSHA clarifies that mine operators 
will only need to integrate existing training provisions, as 
applicable, into the written safety program. The Agency previously 
described the intended audience for site-specific hazard awareness 
training in the final rule for Training and Retraining of Miners 
Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, 
Surface Clay, Colloidal Phosphate, or Surface Limestone Mines (64 FR 
53080, September 30, 1999). In that final rule, MSHA required that ``. 
. . hazard awareness training be appropriate for the individual who is 
receiving it and that the breadth and depth of training vary depending 
on the skills, background, and job duties of the recipient. For 
example, it may be appropriate to provide hazard awareness training to 
customer truck drivers by handing out a card to the drivers alerting 
them to the mine hazards or directing them away from certain areas of 
the mine site. More extensive hazard awareness training might be needed 
for an equipment manufacturer's representative who comes onto mine 
property to service or inspect a piece of mining equipment. Although 
this individual may not be on mine property for an extended period, the 
person's exposure to mine hazards may warrant more training. 
Appropriate hazard awareness training would typically be more 
comprehensive for contractor employees who fit the definition of 
`miner' because they are engaged in mining operations. These employees 
receive comprehensive training but also need orientation to the mine 
site and information on the mining operations and mine hazards.'' (64 
FR 53128) Similarly, under this final rule, the written safety program 
must include the actions that the mine operator will take to train 
miners and other persons at the mine necessary to perform work to 
identify and address or avoid hazards related to surface mobile 
equipment.
    Under the final rule, mine operators will need to integrate their 
existing training procedures for miners and other persons at the mine 
necessary to perform work into their written safety program to address 
and avoid hazards related to surface mobile equipment.
5. Sections 56.23003(b), 57.23003(b), and 77.2103(b)
    Final Sec. Sec.  56.23003(b), 57.23003(b), and 77.2103(b), similar 
to the proposal, require the responsible person to evaluate and update 
the written safety program for the mine at least annually, or as mining 
conditions or practices change that may adversely affect the health and 
safety of miners or other persons, as accidents or injuries occur, or 
as surface mobile equipment changes or modifications are made. The 
final rule is clarified in two ways. First, the written program must be 
evaluated and updated ``at least'' annually. This clarification 
indicates that an annual evaluation and update is the minimum, and more 
frequent evaluations and updates of the written safety program must be 
done, if necessary. Second, the final rule specifies that the 
evaluation and update must be done when changes in the mining 
conditions or practices ``may adversely affect the health and safety of 
miners or other persons.'' MSHA acknowledges that not all changes to 
mining conditions or practices warrant updates to the written safety 
program. This is similar to MSHA's existing requirements in Sec. Sec.  
56/57.18002 that require for each working place in metal and nonmetal 
(MNM) mines an examination to be conducted for conditions that may 
adversely affect safety or health.
    One commenter stated that requiring the responsible person to 
evaluate and update the written safety program is redundant and already 
covered by part 56 requirements. Other commenters recommended that the 
proposed language regarding ``surface mobile equipment changes or 
modifications'' be removed. The commenters believe that any significant 
changes in equipment are covered under the provision of ``mining 
practices'' changing. In their view, this deletion would capture the 
large-scale changes the Agency intended to cover without including 
small, insignificant changes. These same commenters also recommended 
removing the term ``injuries'' from the proposal because most powered 
haulage injuries cannot meaningfully be addressed in a safety program. 
The commenters stated that, for example, an equipment operator who 
slams a finger in the door of a pickup truck or pulls a muscle climbing 
on or off a loader has sustained a powered haulage injury, but they are 
not the types of injuries that warrant re-evaluation of the program. 
The commenters stated that ``accidents,'' however, should be retained 
and that yearly is a reasonable timeframe to reevaluate the program. 
Other commenters suggested that MSHA revise the requirement to read: 
``evaluate and update the written safety program at least annually or 
whenever necessary to manage safety risks associated with their surface 
mobile equipment appropriately.''
    Except the clarifications described earlier, this requirement is 
the same as the proposal. As explained in the previous section, MSHA 
believes that given the type of authority and responsibility, it is a 
responsible person who must evaluate and update the written safety 
program. In addition, as stated in the proposal, best practices shown 
by NIOSH, OSHA, and other safety standards organizations include 
ongoing evaluations of workplace activities and processes to address 
safety proactively and to find and fix hazards before injuries and 
fatalities happen. Moreover, in response to some commenters 
recommending that the term injuries be removed from the requirements, 
MSHA believes that the term is still needed because injuries are an 
indicator of hazards at mines that could result in further injuries and 
fatalities. The final rule also clarifies that the written safety 
program must be evaluated and updated when mining conditions and 
practices change that may adversely affect the health and safety of 
miners.
6. Sections 56.23003(c), 57.23003(c), and 77.2103(c)
    Final Sec. Sec.  56.23003(c), 57.23003(c), and 77.2103(c) is a 
provision that requires operators to consult with miners and their 
representatives in developing and updating the safety program. These 
requirements are consistent with existing obligations to consult with 
miners and representatives and MSHA's long-standing recognition that 
such consultation is vital for ensuring the efficacy of safety 
programs. Under existing requirements, operators already must (in many 
cases) provide miners and miners' representatives the opportunity to 
comment on or otherwise participate in these existing processes. See, 
e.g., 30 CFR 46.3(g), 48.23(d) and (j)(1), and 56/57.18002. As these 
existing processes are expected to be referenced in developing and 
updating the safety program, miners and their representatives similarly 
should be

[[Page 87912]]

consulted in developing and updating the program. In drafting the 
proposal, MSHA intended that operators would seek input from miners and 
their representatives in the development and updating of a meaningful 
safety program, given their existing involvement with most of the 
component parts of the program. The proposal also provided that the 
responsible person ``should be able to communicate the operator's 
commitment to safety and the importance of miners' involvement in the 
program to prevent or mitigate hazards.'' 86 FR 50500. In addition, 
commenters requested that miners and their representatives participate 
in the development of the written safety program. MSHA includes this 
provision in the final rule to recognize the comments and to be 
consistent with the Agency's intent in the proposal and with the Mine 
Act. In drafting the proposal, consistent with the Agency's long-
standing practice and section 2(e) of the Mine Act, MSHA intended that 
miners would be involved in the development and updating of the 
program, although it was not discussed in the preamble.
    The Mine Act provides miners and their representatives a right to 
participate in various safety and health activities. Some examples are 
as follows. Section 2(e) provides that ``the operators of [coal or 
other] mines with the assistance of the miners have the primary 
responsibility to prevent the existence of [unsafe and unhealthy] 
conditions and practices in such mines.'' Section 101(c) provides that 
the representative of miners may petition the Secretary (of Labor) to 
``modify the application of any mandatory safety standard to a coal or 
other mine if the Secretary determines that an alternative method of 
achieving the result of such standard exists which will at all times 
guarantee no less than the same measure of protection afforded the 
miners of such mine by such standard . . .'' Section 103(f) provides 
that miners' representatives ``be given an opportunity to accompany the 
Secretary or authorized representative during the physical inspection 
of any coal or other mine . . .'' Section 103(g)(1) provides a 
representative of miners or a miner in case there is no representative 
the ``right to obtain an immediate inspection by giving notice to the 
Secretary or authorized representative'' that a violation of the Mine 
Act or its standards, or an imminent danger exists. Section 105(c) 
provides miners and their representatives the right to file a 
discrimination complaint with MSHA if they believe they have been 
discharged, discriminated against, or interfered with for complaining 
of ``an alleged danger or safety or health violation in a coal or other 
mine''. Further, as stated by the Senate Committee on Human Resources 
in keeping with a purpose of the Mine Act: ``If our national mine 
safety and health program is to be truly effective, miners will have to 
play an active part in the enforcement of the Act.'' S. Rep. No. 95-
181, 95th Cong., 1st Sess. at 35 (1977).
    Based on MSHA's experience and past practice, and consistent with 
the statutory intent of the Mine Act, miners and their representatives 
are involved in many aspects of MSHA's enforcement program and 
standards. MSHA is persuaded by commenters who stated that for safety 
programs to be successful, there must be active and meaningful 
participation from miners. The final rule makes explicit that miners 
provide input in developing and updating the written safety program.

E. Sections 56.23004, 57.23004, and 77.2104--Record and Inspection

    Final Sec. Sec.  56.23004, 57.23004, and 77.2104 is clarified from 
the proposed provision. Like the proposal, the final rule requires that 
the operator make available a copy of the written safety program for 
inspection by authorized representatives of the Secretary, miners, and 
their representatives. In response to comments and consistent with the 
Mine Act that the operator, with the assistance of miners, is primarily 
responsible for safety and health, the final rule clarifies that miners 
and their representatives will receive, upon request, a copy of the 
written safety program at no cost.
    Several commenters requested that MSHA provide further clarity on 
the acceptable formats for delivery of the written safety program. One 
commenter stated that the proposed rule needs to clarify that the 
written safety program is to be provided at no cost to miners and their 
representatives. Another commenter stated that this section should 
indicate that the written program can be maintained and provided 
electronically.
    The final rule allows operators the flexibility to create the 
written safety program in any electronic or hard copy format, as long 
as the written safety program includes the information required by the 
final rule and can be made available for inspection by the Secretary, 
miners, and their representatives. Consistent with the Agency's 
longstanding policy, an operator must provide notice to miners by 
providing an electronic or hard copy of the written safety program to 
miners and their representatives, at no cost, upon request.

III. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 14094 (Modernizing Regulatory Review), and Executive Order 13563 
(Improving Regulation and Regulatory Review)

    Under Executive Order (E.O.) 12866 (as amended by E.O. 14094), the 
Office of Management and Budget (OMB)'s Office of Information and 
Regulatory Affairs (OIRA) determines whether a regulatory action is 
significant and, therefore, subject to the requirements of the E.O. and 
review by OMB. 58 FR 51735, 51741 (1993). As amended by E.O. 14094, 
section 3(f) of E.O. 12866 defines a ``significant regulatory action'' 
as a regulatory action that is likely to result in a rule that may: (1) 
have an annual effect on the economy of $200 million or more; or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, territorial, or tribal governments 
or communities; (2) create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; (3) 
materially alter the budgetary impact of entitlements, grants, user 
fees or loan programs or the rights and obligations of recipients 
thereof; or (4) raise legal or policy issues for which centralized 
review would meaningfully further the President's priorities or the 
principles set forth in the E.O. OIRA has determined that this rule is 
significant under E.O. 12866, and accordingly it has been reviewed by 
OMB.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. 76 FR 3821 (2011). E.O. 13563 
recognizes that some benefits are difficult to quantify and provides 
that, where appropriate and permitted by law, agencies may consider and 
discuss qualitative values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and distributive 
impacts.
    MSHA presents the costs and benefits associated with the final 
rule. MSHA estimated the costs associated with the final rule's 
requirements by adding the estimated costs of the following. First, the 
estimated costs include developing

[[Page 87913]]

the written safety program document, including the actions the 
operators will take to follow better safety procedures and practices, 
by identifying and analyzing hazards, evaluating currently available 
and emerging technologies, developing and maintaining maintenance and 
repair schedules and procedures, and training miners and others to 
identify and address hazards, and including miners in developing and 
updating the program. Operators must also provide copies of the written 
safety program to miners and their representatives upon request. MSHA 
anticipates that the listing of actions operators will take will 
enhance existing compliance and improve safety regarding several of the 
existing requirements (such as training, maintenance and repair, 
workplace exams) that the program must describe. Second, the estimated 
costs include updating the written safety program at least annually and 
under certain circumstances, such as when new equipment is brought to 
the mine or when accidents or changes in mining conditions or practices 
occur that may adversely affect the safety and health of miners, and 
providing copies of the written safety program to miners and their 
representatives upon request. The first component is a one-time, 
initial compliance costs in the first year, whereas the second 
component represents the recurring compliance costs for subsequent 
years.
    This section provides a summary of MSHA's cost and benefit 
estimates of the final rule. This final rule is estimated to have a 10-
year total net benefit of $411 million at a 3 percent discount rate, 
based on estimated 10-year total benefits of $522 million and estimated 
10-year total costs of $111 million. At the 3 percent discount rate, 
the estimated annualized net benefit is $48.2 million (annualized 
benefits of $61.3 million and annualized costs of $13.0 million). 
Supporting materials and data that provide additional details on the 
methodology used to estimate the costs, benefits, and other required 
analyses of this rule are included in the standalone Final Regulatory 
Impact Analysis (FRIA), which has been placed in the rule docket (RIN 
1219-AB91, Docket ID No. MSHA-2018-0016) at https://www.regulations.gov 
and is posted on MSHA's website at https://www.msha.gov.

A. Mining Industry Profile

    A total of 12,434 mines in the U.S. reported their working hours in 
2021. Over 301,000 workers worked at those mines. Table III-1 shows 
which types of mines the miners and other workers worked.

                                      Table III-1--Mines and Employment by Surface or Underground Location in 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Total  mine                Total
                   Commodity                                  Location                Mines    Miners      workers    Contract    contract      Total
                                                                                       \1\                  \2\        miners   workers \2\  workers \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
MNM............................................  Surface Including Facilities.....    11,236   128,156      149,846     60,120  ...........  ...........
                                                 Underground......................       235    18,223       20,712      7,047  ...........  ...........
                                                                                   ---------------------------------------------------------------------
                                                    Total.........................    11,471   146,379      170,558     67,167       69,433      239,991
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coal...........................................  Surface Including Facilities.....       750    18,294       19,200     11,887  ...........  ...........
                                                 Underground......................       213    21,323       21,916      7,664  ...........  ...........
                                                                                   ---------------------------------------------------------------------
                                                    Total.........................       963    39,617       41,116     19,551       20,288       61,404
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Mines......................................  Surface Including Facilities.....    11,986   146,450      169,046     72,007  ...........  ...........
                                                 Underground......................       448    39,546       42,628     14,711  ...........  ...........
                                                                                   ---------------------------------------------------------------------
                                                    Total.........................    12,434   185,996      211,674     86,718       89,721      301,395
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2), Accessed on April 7, 2022.
Notes: All Miners and workers are calculated using employers' headcount reports; some miners and workers may be counted more than once, as they work at
  more than one mine.
\1\ Of the 12,434 mines, 40 did not have any employment in surface areas; they were thus excluded from the analysis.
\2\ Total mine workers and total contract workers include both miners and office/administrative workers.
\3\ Total workers include total mine workers and total contract workers.

    This final rule applies to all operators of surface mines and 
underground mines with surface areas, including independent contractors 
working at those mines. As shown, there were 11,986 surface mines and 
448 underground mines. Most underground mines have surface areas where 
miners work. Of all the mines, about 92 percent were metal and nonmetal 
mines and the rest were coal mines.

B. Costs

    Under the final rule, operators are required to develop, implement, 
and update at least annually and when necessary, a written safety 
program for surface mobile equipment used at their mines. As defined in 
this rule, surface mobile equipment refers to wheeled, skid-mounted, 
track-mounted, or rail-mounted equipment capable of moving or being 
moved, and any powered equipment that transports people, equipment, or 
materials, excluding belt conveyors, at surface mines and surface work 
areas of underground mines.
    The required written safety program for surface mobile equipment 
must include the actions that operators will take to identify and 
analyze hazards and reduce the resulting risks related to equipment 
movement and operation. It must also include actions to develop and 
maintain procedures and schedules for routine maintenance and non-
routine repairs. Operators are also required to describe the actions 
they will take to identify currently available and newly emerging 
feasible technologies that can enhance safety and evaluate whether to 
adopt them. Finally, the rule requires operators to describe the 
actions they will take to train miners and other persons at the mine 
necessary to perform work to identify and address or avoid hazards 
related to surface mobile equipment.
    Once the written safety program is developed and implemented, a 
responsible person is required to evaluate and update it for the mine 
at least annually, or when mining conditions or practices change that 
may adversely affect the health and safety of miners or other persons, 
when accidents or injuries occur, or when surface

[[Page 87914]]

mobile equipment changes or modifications are made. While the final 
rule provides operators flexibility to devise a safety program that is 
appropriate for their specific mining conditions and operations, the 
final rule also requires operators to solicit input from miners and 
their representatives as they develop and update the written safety 
program.
    MSHA estimated the costs associated with the final rule's 
requirements by adding the estimated costs of the following. First, the 
estimated costs include developing the written safety program document, 
including the actions the operators will take to identify and analyze 
hazards, evaluate current and emerging technologies, develop and 
maintain the maintenance and repair schedules and procedures, train 
miners and others to identify and address hazards associated with 
surface mobile equipment. Operators must also provide copies of the 
written safety program to miners and their representatives upon 
request. Second, the estimated costs include updating the written 
safety program at least annually and under certain circumstances, such 
as when new equipment is brought to the mine or when accidents or 
changes in mining conditions or practices occur that may adversely 
affect the safety and health of miners, and, for each update, providing 
copies of the written safety program to miners and their 
representatives upon request. The first component is considered to be 
the one-time, initial compliance costs in the first year, whereas the 
second component represents the recurring compliance costs for 
subsequent years. Estimated costs also include providing copies of the 
written safety program to miners and their representatives upon 
request.
    MSHA calculated these compliance costs based on the estimated time 
spent by mine employees to develop and update the written safety 
program, multiplied by their wage rates. MSHA assumed that mine 
supervisors, safety professionals, and maintenance workers would 
participate in the creation and updates of the written safety program. 
MSHA assumed that operators will solicit input from miners and their 
representatives in developing and maintaining all aspects of the 
written safety program, and MSHA included the time for their 
collaboration in its cost estimates.
    MSHA further assumed that the time needed to develop and update the 
written safety program would vary by the number of unique surface 
mobile equipment units at each mine, which would be related to a mine's 
production output (e.g., tonnage), and employment size.\8\ Based on 
these factors, MSHA grouped all MNM and coal mines into three 
categories each and estimated the compliance costs for this final rule 
by category.\9\ MSHA also assumed a majority of independent contractors 
(75 percent or 4,739) would develop and update a written safety program 
for surface mobile equipment at mines.\10\
---------------------------------------------------------------------------

    \8\ MSHA used metric tons for the production output as based on 
the cost estimation chapter of the Society for Mining, Metallurgy, 
and Exploration Handbook. Stebbins, S.A., and Leinart, J.B. 2011. 
Cost estimating for surface mines. In SME Mining Engineering 
Handbook, 3rd ed. Edited by P. Darling.
    \9\ See Appendix A of the Final Regulatory Impact Analysis for 
this final rule for a detailed explanation.
    \10\ Based on its examination of the mining contractors listed 
in 2021, MSHA estimated that approximately 75 percent of 6,318 part 
45 independent contractors would be required under the final rule to 
develop a safety program because they have surface mobile equipment.
---------------------------------------------------------------------------

    The total compliance cost estimates are shown in Table III-2. The 
compliance costs for the 10-year period of analysis (i.e., 10-year 
implementation period) are estimated to be about $126 million (in 2021 
dollars) undiscounted, while the 10-year compliance costs discounted at 
3 percent and 7 percent are about $111 million and $95 million, 
respectively. The annualized costs discounted at 3 and 7 percent are 
$13.0 million and $13.5 million, respectively.

                                  Table III-2--Yearly Compliance Cost Estimates
                                           [Millions of 2021 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                              Total compliance costs
                                                                 -----------------------------------------------
                       Implementation year                                         Discounted at
                                                                 -----------------------------------------------
                                                                        0%              3%              7%
----------------------------------------------------------------------------------------------------------------
Year 1..........................................................           $37.0           $36.0           $34.6
Year 2..........................................................             9.9             9.4             8.7
Year 3..........................................................             9.9             9.1             8.1
Year 4..........................................................             9.9             8.8             7.6
Year 5..........................................................             9.9             8.6             7.1
Year 6..........................................................             9.9             8.3             6.6
Year 7..........................................................             9.9             8.1             6.2
Year 8..........................................................             9.9             7.8             5.8
Year 9..........................................................             9.9             7.6             5.4
Year 10.........................................................             9.9             7.4             5.0
                                                                 -----------------------------------------------
    10-Year Total...............................................           126.4           111.0            95.1
    Annualized..................................................            12.6            13.0            13.5
----------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.

C. Benefits

    This final rule is expected to generate numerous benefits, 
including reductions in individual injuries and fatalities, fostering 
of a positive safety culture at the mine, reductions in worker 
compensation and other insurance premiums, and decreases in down-time 
(non-production time) due to accidents. Among these benefits, MSHA 
focused on estimating the number of surface mobile equipment-related 
fatalities and injuries that could be prevented due to this final rule 
and the monetized benefits of those fatalities and injuries prevented. 
MSHA also performed a sensitivity analysis covering different scenarios 
that would lead to different percentages of fatalities and injuries 
prevented, and thus to different levels of benefits depending on the 
assumptions made.
    Since the final rule includes all mines, MSHA modified the approach

[[Page 87915]]

from the proposed rule and used the following analysis to estimate the 
monetized benefits of fatalities and injuries prevented. MSHA first 
established a baseline using the fatality and injury data and post-
accident investigation reports from the 2011-2020 period. In the 
proposed rule, MSHA used data for accidents, fatalities, and injuries 
from the years 2003 to 2018 for mines that employed six or more miners. 
For the final rule, however, MSHA is using more recent and 
comprehensive data and detailed information concerning accidents, 
fatalities, and injuries that occurred between 2011 and 2020 for all 
mines. The Agency believes the more recent data better reflects current 
and future circumstances.
    To estimate the monetized benefits of fatalities and injuries 
prevented, MSHA first examined historical fatality and injury data and 
post-accident investigation reports from the 2011-2020 period. MSHA 
found that over that 10-year period, there were 113 surface mobile 
equipment fatalities. MSHA further observed that in the case of 63 
(about 56 percent) of the 113 fatalities involving surface mobile 
equipment, deficiencies in training, hazard identification, or 
maintenance or any combination of these three factors contributed to 
the fatality. MSHA also counted 13,753 non-fatal injuries involving 
surface mobile equipment and 454,076 workdays lost due to those 
injuries during the 10-year period.
    Based on this historical analysis, MSHA projected the numbers of 
surface mobile equipment fatalities, non-fatal injuries, and lost 
workdays that would be expected due to deficiencies in training, hazard 
identification, or maintenance, in the absence of the final rule. MSHA 
then compared those projected numbers (``baseline'') with the 
projections of the same types of fatalities, non-fatal injuries, and 
workdays lost, in the presence of the final rule. The difference 
between the two was used as the basis for calculating benefits of the 
final rule. MSHA believes that a safety program that identifies actions 
operators will take to accomplish the required tasks will reduce 
fatalities, non-fatal injuries, and lost workdays that would be 
expected due to deficiencies in training, hazard identification, or 
maintenance because it will increase compliance with MSHA's existing 
hazard identification, hazard correction, maintenance, and training 
requirements.
    MSHA projected that in the absence of the final rule, over the next 
10 years, there would be 60 fatalities, 7,298 injuries, and 240,954 
workdays lost annually due to deficiencies in training, hazard 
identification, or maintenance related to surface mobile equipment. 
These projections assume a mining workforce of approximately 253,401 
(each working 2,000 hours in a year) each year. MSHA estimated that the 
final rule would reduce the projected fatalities, injuries, and 
workdays lost resulting from deficiencies in training, hazard 
identification, or maintenance by about 75 percent for each year the 
rule is in effect, beginning in the second year.\11\ MSHA then 
performed a sensitivity analysis with two additional scenarios--a 50 
percent reduction and a 25 percent reduction. Table III-3 and Table 
III-4 present summaries of these results.
---------------------------------------------------------------------------

    \11\ In the first year--because the rule will be effective for 
only half the year--there would be a 37.5 percent, rather than a 75 
percent, reduction.

      Table III-3--Projected Surface Mobile Equipment Fatalities in the Absence of and With the Final Rule
----------------------------------------------------------------------------------------------------------------
                                      In the absence of final                   With final rule
                                                rule          --------------------------------------------------
                                     -------------------------         Fatalities prevented--projections
                                         Projected surface    --------------------------------------------------
                                          mobile equipment
                                         fatalities due to
         Implementation year              deficiencies in          Program
                                          training, hazard      effectiveness       Program          Program
                                         identification, or         at 75%       effectiveness    effectiveness
                                            maintenance           (expected          at 50%           at 25%
                                     -------------------------    scenario)
                                              Baseline
----------------------------------------------------------------------------------------------------------------
Year 1 *............................                     6.00              2.2              1.5              0.7
Year 2..............................                     6.00              4.5              3.0              1.5
Year 3..............................                     6.00              4.5              3.0              1.5
Year 4..............................                     6.00              4.5              3.0              1.5
Year 5..............................                     6.00              4.5              3.0              1.5
Year 6..............................                     6.00              4.5              3.0              1.5
Year 7..............................                     6.00              4.5              3.0              1.5
Year 8..............................                     6.00              4.5              3.0              1.5
Year 9..............................                     6.00              4.5              3.0              1.5
Year 10.............................                     6.00              4.5              3.0              1.5
                                     ---------------------------------------------------------------------------
    10-Year Total...................                     60.0             42.7             28.5             14.2
----------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.
* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer
  fatalities prevented in the first year than in each subsequent year. For example, under the expected scenario,
  MSHA estimates that 4.5 lives will be saved in a full year after implementation, but given the 6-month delayed
  compliance date, a half of 2.2 lives is assumed to be saved in the first year.


[[Page 87916]]


       Table III-4--Projected Surface Mobile Equipment Injuries in the Absence of and With the Final Rule
----------------------------------------------------------------------------------------------------------------
                                      In the absence of final                   With final rule
                                                rule          --------------------------------------------------
                                     -------------------------          Injuries prevented--projections
                                         Projected surface    --------------------------------------------------
                                          mobile equipment
                                          injuries due to
         Implementation year              deficiencies in          Program
                                          training, hazard      effectiveness       Program          Program
                                         identification, or         at 75%       effectiveness    effectiveness
                                            maintenance           (expected          at 50%           at 25%
                                     -------------------------    scenario)
                                              Baseline
----------------------------------------------------------------------------------------------------------------
Year 1 *............................                      730            273.7            182.5             91.2
Year 2..............................                      730            547.4            364.9            182.5
Year 3..............................                      730            547.4            364.9            182.5
Year 4..............................                      730            547.4            364.9            182.5
Year 5..............................                      730            547.4            364.9            182.5
Year 6..............................                      730            547.4            364.9            182.5
Year 7..............................                      730            547.4            364.9            182.5
Year 8..............................                      730            547.4            364.9            182.5
Year 9..............................                      730            547.4            364.9            182.5
Year 10.............................                      730            547.4            364.9            182.5
                                     ---------------------------------------------------------------------------
    10-Year Total...................                    7,298            5,200            3,467            1,733
----------------------------------------------------------------------------------------------------------------
Notes: Totals may not equal the sum of the components due to rounding.
* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer injuries
  prevented in the first year than in each subsequent year.

    The monetary value of the reduction in fatalities and injuries 
related to surface mobile equipment is calculated as follows. First, to 
develop a monetized benefit estimate of fatality reduction, MSHA used 
the Value of a Statistical Life (VSL) adopted by other Federal agencies 
like the Department of Transportation and Department of Homeland 
Security, and adjusted for the real per-capita Gross Domestic Product 
(GDP). Second, to estimate the monetized benefit of injury reduction, 
MSHA used the projected reduction in the number of workdays lost due to 
injuries, multiplied by the average wage of miners. The monetized 
benefits of reduced injuries were then calculated by multiplying the 
total workdays lost due to the injuries and the average wage of miners. 
Again, MSHA performed a sensitivity analysis with two additional 
scenarios--a 25 percent reduction and a 50 percent reduction in 
fatalities and injuries. In the expected scenario, the 10-year 
monetized benefit totals, in 2021 dollars, are calculated at $522 
million at a 3 percent discount rate and $424 million at a 7 percent 
discount rate.

D. Net Benefits

    Table III-5 presents the monetized net benefits for the first 10 
years of implementation of the final rule. The 10-year net benefit 
totals in 2021 dollars are $411 million at a 3 percent discount rate 
and $329 million at a 7 percent discount rate. An annualized net 
benefit is estimated at $48.2 million and $46.8 million, respectively, 
at 3 percent and 7 percent discount rates.

                                                           Table III-5--Monetized Net Benefits
                                                               [Millions of 2021 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Expected  scenario             Low net benefit  scenario       Lowest net benefit scenario
                                                    ----------------------------------------------------------------------------------------------------
                                                               Discounted at                     Discounted at                    Discounted at
                                                    ----------------------------------------------------------------------------------------------------
                                                         0%         3%         7%          0%         3%         7%          0%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-Year total *....................................       $493       $411       $329        $286       $237       $187         $80        $63        $46
Annualized.........................................       49.3       48.2       46.8        28.6       27.8       26.7         8.0        7.4        6.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.
* MSHA assumed that a full-year worth costs would be incurred, while projecting a half of the full-year monetized benefits in the first year, due to the
  timing of implementation (6-month delayed compliance).

    MSHA believes that the net-benefits of the rule are understandable, 
because the costs of the safety program are modest relative to the 
much-higher value of the estimated reduction in fatalities.

IV. Regulatory Flexibility Analysis (RFA) and Small Business Regulatory 
Enforcement Fairness Act (SBREFA) and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

    MSHA has reviewed the final rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. Pursuant to the Regulatory 
Flexibility Act (RFA) of 1980, as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA), MSHA analyzed the impact 
of the final rule on small entities. Based on that analysis, MSHA 
certifies that this final rule does not have a

[[Page 87917]]

significant economic impact on a substantial number of small entities. 
The factual basis for this certification is presented in this section.

A. Definition of Small

    Under the RFA, when analyzing the impact of a rule on small 
entities, MSHA must use the Small Business Administration's (SBA) 
definition for a small entity or, after consultation with the SBA 
Office of Advocacy, establish an alternative definition for the mining 
industry by publishing that definition in the Federal Register for 
notice and comment. The SBA uses North American Industry Classification 
System (NAICS) codes, generally at the 6-digit NAICS level, to set 
thresholds for small business sizes for each industry.\12\
---------------------------------------------------------------------------

    \12\ Small Business Administration, Table of Size Standards: 
Effective July 14, 2022. https://www.sba.gov/document/support-table-size-standards.
---------------------------------------------------------------------------

B. Factual Basis for Certification

    Following SBA guidance on carrying out a threshold analysis, MSHA 
evaluates the impacts on small entities by comparing the estimated 
compliance costs of a rule for small entities in the sector affected by 
the rule to the estimated revenues for the affected sector. When 
estimated compliance costs are less than 1 percent of the estimated 
industry revenues, it is generally appropriate to conclude that there 
is no significant economic impact on a substantial number of small 
entities. In addition to assessing the overall impact on small 
entities, MSHA examines data for the NAICS codes that have much higher 
impact ratios (cost/revenue) than others to ensure that the first-level 
screening is representative.
    As the first step, MSHA identified all small-entity controllers in 
the mining industry on the basis of the small-entity thresholds. The 
MNM and coal mining operations affected by the rule fall into two 
general categories: (1) controllers (parent companies) that own and 
operate mines, which is the appropriate unit for this RFA analysis 
(based on SBA guidance),\13\ and (2) mining contractors (independent 
contractors designated under part 45 of 30 CFR), hired by mine 
operators to work at mines, that operate their own surface mobile 
equipment. MSHA identified and analyzed the effect of the rule on 
small-entity controllers of mines and on small-entity mining 
contractors.
---------------------------------------------------------------------------

    \13\ A controller is a parent company owning or controlling one 
or more mines, whereas a mine is an establishment of that parent 
company. Small entities, subject to requirements of the Regulatory 
Flexibility Act, are entities that are parent companies only and not 
establishments. See Small Business Administration, Office of 
Advocacy, How to Comply with the Regulatory Flexibility Act, August 
2017. Sec. 3(d) of the Mine Act defines ``operator'' as ``any owner, 
lessee, or other person who operates, controls, or supervises a coal 
or other mine.'' 30 U.S.C. 802(d). Under 30 CFR part 41, an operator 
must file a legal identity report with MSHA and with this report, 
MSHA identifies a controller for each mine. 30 U.S.C. 819(d) (each 
operator shall file the name and address of the ``person who 
controls or operates the mine.''). In the IRFA, MSHA considered the 
controller of a mine and then determined whether the mine, not the 
controller, was a small entity. In the FRFA, consistent with the SBA 
guidance and the Mine Act, MSHA determines whether a controller is a 
small entity.
---------------------------------------------------------------------------

    To determine the number of small entities subject to the final 
rule, MSHA reviewed NAICS, the standard used by Federal statistical 
agencies in classifying business establishments, as well as information 
from the SBA Office of Advocacy. MSHA used its data from the MSHA 
Standardized Information System (MSIS) to identify the responsible 
party for each mine, as well as the contractors hired to do work on 
mines. MSHA then combined that information with the size classification 
information. The two sections below describe MSHA's analysis of 
controllers and mining contractors, respectively.
    Small-entity controllers: In analyzing controllers of mines, MSHA 
determined that mining operations that fall into 19 NAICS-based 
industry classifications may be subject to the final rule. These 
industry categories and their accompanying six-digit NAICS codes are 
shown in Table IV-1.\14\ MSHA then matched the NAICS classifications 
with SBA small-entity size standards (based on number of employees) to 
determine the number of small entities within each of the respective 
NAICS codes. See Table IV-1.
---------------------------------------------------------------------------

    \14\ The NAICS classifications used in this analysis are drawn 
from the latest version of the NAICS, which was effective in July 
2022. MSHA also used, in the analysis, an earlier the version of 
NAICS categories that were effective in August 2019. When developing 
the analysis, MSHA had begun the work prior to the most current 
NAICS being effective. The older NAICS categories were still used in 
the part of the current analysis that estimated revenues. This is 
because the older categories were still needed in order for MSHA to 
cross-tabulate (or crosswalk) its data on mines and controllers with 
Bureau of Census data on revenues by NAICS codes, where these Census 
data were organized by the same NAICS codes that were in the earlier 
version. No comparable revenue data, at this writing, had yet been 
revised to the most recent NAICS categories.
---------------------------------------------------------------------------

    MSHA counted the number of small-entity controllers in each NAICS 
code, after determining which mines were owned by which controllers. 
Table IV-1 shows the count of all controllers and a count of small-
entity controllers in each NAICS code.\15\
---------------------------------------------------------------------------

    \15\ Some controllers own mines with more than one NAICS code if 
those mines produce different commodities. For this analysis, 
however, MSHA counted each ``unique'' controller only once. In other 
words, there is no double-counting of the same controller if a 
controller produces in more than one NAICS code. It is not uncommon 
for firms to produce different products falling under more than one 
six-digit NAICS codes, especially if the firm is large. In any case, 
no single NAICS code is attributed to any controller that has more 
than one NAICS code. Rather, the analysis takes all of any one 
controller's multiple NAICS codes into account without losing any of 
the information about the NAICS codes. Specifically, that one 
controller's revenues and employees are partitioned among each of 
that one controller's production by NAICS code, and then aggregated 
for that one controller.
---------------------------------------------------------------------------

    Based on this methodology, MSHA estimated that in 2021, there were 
a total of 5,879 controllers, and 5,462 of them were small-entity 
controllers. Many controllers owned one or two mines, while some 
controllers owned hundreds of mines nationwide (or worldwide).\16\
---------------------------------------------------------------------------

    \16\ The number of controllers and mines examined in this 
regulatory flexibility analysis are those specifically known to 
operate in 2021. The year 2021 is the most current year for which 
complete information were available. Such information about 
controllers as parent companies might include, for example, 
knowledge of whether the parent company is a large, multinational 
corporation, which has bearing on this regulatory flexibility 
analysis. Because the benefit-cost analysis performed on the 
proposed rule did not need this kind of detailed information about 
controllers, it was able to have a broader scope to include data 
from other years besides 2021, and to include some more data in the 
year 2021 itself, which it did. As a result, the benefit cost 
analysis included a larger number of mines (and affected mines) and 
controllers. The key factor for this regulatory flexibility analysis 
is the estimated ratio of the regulatory cost per revenue for 
controllers, as reflected by the most current data. The estimation 
of this ratio is robustly addressed in MSHA's analysis of the 5,879 
controllers in 2021 (which is not impacted by the exclusion of other 
years in this analysis).

[[Page 87918]]



  Table IV-1--Small Entities Affected by the Final Rule: Number of Controllers and Small-Entity Controllers by
                                                  NAICS Code *
----------------------------------------------------------------------------------------------------------------
                                                                     SBA size
                                                                   standards in                      Number of
            NAICS code                  Industry description          maximum     Number  of all   small-entity
                                                                     number of      controllers     controllers
                                                                   employees **
----------------------------------------------------------------------------------------------------------------
211120............................  Crude petroleum extraction             1,250               4               3
                                     ***.
211130............................  Natural Gas Extraction ***..           1,250               1               0
212114............................  Surface Coal Mining.........           1,250             282             237
212115............................  Underground Coal Mining.....           1,500             122              99
212210............................  Iron Ore Mining.............             750              31              26
212220............................  Gold Ore and Silver Ore                1,500             142             108
                                     Mining.
212230............................  Copper, Nickel, Lead, and                750              45              33
                                     Zinc Mining.
212290............................  Other Metal Ore Mining......             750              29              22
212311............................  Dimension Stone Mining and               500             491             432
                                     Quarrying.
212312............................  Crushed and Broken Limestone             750             820             738
                                     Mining and Quarrying.
212313............................  Crushed and Broken Granite               750             182             165
                                     Mining and Quarrying.
212319............................  Other Crushed and Broken                 500             760             704
                                     Stone Mining and Quarrying.
212321............................  Construction Sand and Gravel             500           3,221           2,984
                                     Mining.
212322............................  Industrial Sand Mining......             500             172             155
212323............................  Kaolin, Clay, and Ceramic                500             161             143
                                     and Refractory Minerals
                                     Mining.
212390............................  Other Nonmetallic Mineral                500             151             123
                                     Mining and Quarrying.
327310............................  Cement Manufacturing........           1,000              74              53
327410............................  Lime Manufacturing..........             750              58              49
331313............................  Primary production of                  1,300               3               3
                                     alumina and aluminum.
----------------------------------------------------------------------------------------------------------------
* Each mine is assigned only one NAICS (as its major product) but some controllers that own more than one mine
  own mines that are in different NAICS. Consequently, some controllers have more than one NAICS (when they own
  mines with different NAICS) and they are therefore counted more than once in this table. See Table _-2 for the
  distribution of controllers by the NAICS code for which they have the most employees, which will then show
  only one NAICS code for each controller.
** SBA, effective July 14, 2022.
*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas
  extraction, but the mines in these categories that are counted here, and included in this analysis, also
  involve mining operations that would fall under MSHA's jurisdiction. This analysis does not include crude
  petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not regulate
  these activities.

    Each mine is assigned only one NAICS code, with that code 
reflecting what that mine produces the most. There are several cases in 
which more than one mine, owned by the same controller, have different 
NAICS codes, and as a result that one controller has multiple NAICS 
codes. For this reason, some controllers are counted more than once in 
this Table IV-1 (as also explained in a footnote in the table). In 
particular, of the 5,879 unique controllers identified in 2021, 608 of 
them each owned multiple mines with different NAICS codes. In theory, 
this could present an ambiguity as to whether a controller, with more 
than one NAICS code, should be considered a small entity or not. Since 
NAICS codes vary by their small-entity thresholds, it is theoretically 
possible for a controller with more than one NAICS code to be a small 
entity according to the threshold for one of its NAICS codes, while not 
being a small entity under the lower threshold that applies to another 
of its NAICS codes. However, this situation was not found to occur for 
any of the controllers; all controllers that were determined to be 
small entities met the conditions for a small entity for each of their 
NAICS codes.
    While some controllers are in more than one mining NAICS code, the 
distribution of controllers by their most significant NAICS code may 
also provide useful information about the general structure of the 
industry. Therefore, MSHA also prepared Table IV-2 to present the 
distribution of controllers by the one NAICS code under which the 
largest number of their employees are reported. This table then assigns 
only one NAICS code for each controller, allowing for a count of 
controllers by their (mutually exclusive) most significant NAICS code 
in mining.\17\
---------------------------------------------------------------------------

    \17\ Note that many of the controllers also own operations in 
other, non-mining industries, and in other mining operations in 
other nations.

 Table IV-2--Small Entities Affected by the Final Rule: Distribution of Controllers by NAICS Category, With One
                                           NAICS Code per Controller *
----------------------------------------------------------------------------------------------------------------
                                                                     SBA size
                                                                   standards  in                    Number  of
            NAICS code                  Industry description          maximum     Number  of all   small-entity
                                                                     number of      controllers     controllers
                                                                   employees **
----------------------------------------------------------------------------------------------------------------
211120............................  Crude Petroleum Extraction             1,250               3               3
                                     ***.
211130............................  Natural Gas Extraction ***..           1,250               1               0
212114............................  Surface Coal Mining.........           1,250             246             218
212115............................  Underground Coal Mining.....           1,500              93              75
212210............................  Iron Ore Mining.............             750              19              18

[[Page 87919]]

 
212220............................  Gold Ore and Silver Ore                1,500              98              82
                                     Mining.
212230............................  Copper, Nickel, Lead, and                750              31              25
                                     Zinc Mining.
212290............................  Other Metal Ore Mining......             750              14              12
212311............................  Dimension Stone Mining and               500             415             382
                                     Quarrying.
212312............................  Crushed and Broken Limestone             750             716             675
                                     Mining and Quarrying.
212313............................  Crushed and Broken Granite               750             133             130
                                     Mining and Quarrying.
212319............................  Other Crushed and Broken                 500             617             596
                                     Stone Mining and Quarrying.
212321............................  Construction Sand and Gravel             500           3,046           2,839
                                     Mining.
212322............................  Industrial Sand Mining......             500             120             113
212323............................  Kaolin, Clay, and Ceramic                500             108             101
                                     and Refractory Minerals
                                     Mining.
212390............................  Other Nonmetallic Mineral                500             108              95
                                     Mining and Quarrying.
327310............................  Cement Manufacturing........           1,000              61              49
327410............................  Lime Manufacturing..........             750              48              47
331313............................  Primary production of                  1,300               2               2
                                     alumina and aluminum.
                                                                 -----------------------------------------------
    Total.........................  ............................  ..............           5,879           5,462
----------------------------------------------------------------------------------------------------------------
* Each controller is assigned the one NAICS code for which it devotes the most employees, based on the employees
  at its mines and each of its mines being associated with only one NAICS code.
** SBA, effective July 14, 2022.
*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas
  extraction, but the mines in these categories that are counted here, and included in this analysis, also
  involve mining operations that would fall under MSHA's jurisdiction. This analysis does not include crude
  petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not regulate
  these activities.

    MSHA estimated the costs of the rule for small-entity controllers 
by summing the costs for each of these controller's mines. The 
estimated cost for each mine was based on the number of miners at that 
mine, and the mine's industry category. Thus, if two mines belonging to 
the same controller had different NAICS codes, both of those NAICS 
codes would be accounted for, and the total cost to the controller 
would be calculated as the total cost for all of that controller's 
mines. Similarly, the estimated revenues of controllers were derived as 
the sum of the revenues of each of their mines, which was, in turn, 
dependent on the NAICS codes associated with those mines. Thus, all of 
NAICS codes for all of the mines, and all of the mines under all of the 
NAICS codes, were accounted for in the estimates of the costs and 
revenues of controllers.
    As shown in Table IV-2, MSHA determined that, in 2021, there were a 
total of 5,879 controllers, and 5,462 of them were small-entity 
controllers. These small-entity controllers owned a total of 9,395 
mines, out of the 12,529 mines owned by all controllers in 2021. Table 
IV-3 presents a summary of the main findings regarding small-entity 
controllers. As shown, MSHA estimated the total cost of the rule to all 
5,462 small-entity controllers to be $26.69 million in the first year, 
and $8.17 million in each subsequent year (in 2021 dollars). Per small 
entity, this amounted to an average compliance cost of $4,886 in the 
first year and $1,496 in each year thereafter. MSHA estimated the total 
revenues of the 5,462 small-entity controllers to be $33,720 million 
(in 2021 dollars). As a result of these estimates, MSHA found the 
compliance cost of the final rule to small entities, as a percent of 
revenues, on average, to be 0.165 percent in the first year, and 0.069 
percent in each subsequent year. Among the small-entity controllers 
examined, the compliance cost as a percent of controllers' revenues 
ranged from near zero to a maximum of 0.341 percent in the first year, 
and to a maximum of 0.175 percent in each year thereafter. On the basis 
of these findings, MSHA determined that the final rule does not have a 
significant impact on small entities controllers in the mining 
industry.

      Table IV-3--Main Findings for 5,462 Small-Entity Controllers
------------------------------------------------------------------------
                                                               Each
            Economic measure                First year      subsequent
                                                               year
------------------------------------------------------------------------
Total Compliance Costs (in Millions of            $26.69           $8.17
 2021 Dollars)..........................
Total Revenue (in Millions of 2021               $33,720         $33,720
 Dollars)...............................
Average Compliance Cost per Small-Entity          $4,886          $1,496
 Controller (in 2021 Dollars)...........
Ratio of Total Compliance Cost/Total               0.079           0.024
 Revenue (in Percent)...................
Average of the Ratios of Compliance Cost/          0.165           0.069
 Revenue (in Percent)...................
------------------------------------------------------------------------

    Small-entity independent contractors: For its analysis of 
independent contractors designated under part 45 of 30 CFR, MSHA used 
MSIS data to first derive a list of all mining contractors in the year 
2021. The list contained a total of 6,318 contractors. While these 
contractors varied greatly in terms of their corresponding NAICS codes, 
MSHA determined that the most relevant NAICS codes for characterizing 
the mining contractors were the NAICS

[[Page 87920]]

Codes for (1) ``Support Activities for Coal Mining'' (213113), (2) 
``Support Activities for Metal Mining'' (213114), and (3) ``Support 
Activities for Nonmetallic Minerals'' (213115). MSHA did not have data 
on parent companies of these contractors. However, MSHA analyzed data 
on enterprises and establishments in these NAICS codes from the Census 
Bureau, Statistics of U.S. Businesses (SUSB).\18\ The SUSB data on 
entities in these three NAICS codes indicated that the vast majority of 
contractors (which would be listed separately in MSHA's data) are, 
themselves, parent companies. Specifically, based on the SUSB data on 
parent companies and the enterprises that belong to them, MSHA observed 
that the number of enterprises in these three NAICS codes, on average, 
exceeded the number of parent companies by only about 9 percent. 
Therefore, over 91 percent of parent companies that are mining 
contractors have only one establishment, implying that the vast 
majority of listed contractors are themselves parent companies, rather 
than subsidiaries of larger companies. Based on these findings, MSHA 
assumed in its analysis that the contractors on its list are parent 
companies.
---------------------------------------------------------------------------

    \18\ Census Bureau, Statistics of U.S. Businesses. https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html.
---------------------------------------------------------------------------

    Based on this assumption that each of the listed mining contractors 
in 2021 is not a subsidiary of a larger company, MSHA estimated how 
many of them would be considered small entities under the RFA. To make 
this determination, MSHA applied the size thresholds for the three 
NAICS categories for support activities for mining (213113, 213114, and 
213115). Small entities in NAICS 213113 (support activities for coal 
mining) are those with annual revenues below the threshold of $27.5 
million in 2022 dollars, while those in NAICS 213114 (support 
activities for metal mining) and NAICS 213115 (support activities for 
nonmetallic minerals) have annual revenues of less than $41.0 million 
and $20.5 million, respectively.\19\ In estimating how many contractors 
are small entities, MSHA conservatively applied the $20.5 million (in 
2022 dollars) threshold, so as not to underestimate the number of small 
entities.\20\ MSHA's estimation of the number of small-entity 
contractors may therefore be an overestimation; however, MSHA still 
believes it is a close approximation to the number of small-entity 
contractors that would be determined if more detailed data were 
available.
---------------------------------------------------------------------------

    \19\ Small Business Administration, Table of Size Standards: 
Effective July 14, 2022. https://www.sba.gov/document/support-table-size-standards.
    \20\ MSHA translated the threshold of $20.5 million in 2022 
dollars to $17.44 million in 2017 dollars based on the Bureau of 
Economic Analysis' GDP Price Index.
---------------------------------------------------------------------------

    From the employment and revenue data in the SUSB tables for the 
three NAICS Codes for support activities for mines, MSHA estimated that 
mining support contractors have, on average, revenues of approximately 
$315,000 (in 2017 dollars) per employee.\21\
---------------------------------------------------------------------------

    \21\ It is important to note that, although, contractor revenues 
may be close in magnitude to their costs, those costs often far 
exceed their labor costs, and therefore their revenue per employee 
would be expected to far exceed their average salaries. Such 
additional costs, besides labor costs, include the costs of 
equipment, fuel, overhead, taxes, etc.
---------------------------------------------------------------------------

    MSHA's data on mining contractors included the number of employees 
working for each contractor. MSHA was able to estimate the revenue of 
each contractor by multiplying its number of employees by the average 
revenue per employee of $315,000 from the SUSB data. From these 
estimates of each contractor's revenue, MSHA estimated that 
approximately 4,469 contractors out of a total of 4,739 contractors 
affected by the rule (or about 94.3 percent of those contractors) are 
potentially small entities, under the threshold of $17.4 million (in 
2017 $) in annual revenue.
    Table IV-3 presents a summary of the main findings on mining 
contractors that would be affected by the rule. As shown, MSHA 
estimated the total cost to all 4,469 potential small-entity 
contractors of the rule to be $2.69 million in the first year and 
$0.954 million in each subsequent year. Per small-entity contractor, 
this amounted to an average cost of $453 in the first year and $212 in 
each year thereafter. MSHA estimated the total revenues of the 4,469 
potential small-entity contractors to be $12,783 million (in 2021 
dollars). As a result of these estimates, MSHA found the cost of the 
final rule to small-entity contractors, as a percent of revenue, to be, 
on average across the contractors, 0.0211 percent of revenue in the 
first year and 0.0074 percent of revenue in each subsequent year. On 
the basis of these findings, MSHA determined that the final rule does 
not have a significant impact on small-entity-contractors in the mining 
industry.

      Table IV-3--Main Findings for 4,469 Small-Entity Contractors
------------------------------------------------------------------------
                                                               Each
            Economic measure                First year      subsequent
                                                               year
------------------------------------------------------------------------
Total Compliance Costs (in Millions of             $2.69           $0.95
 2021 Dollars)..........................
Total Revenue (in Millions of 2021               $12,783         $12,783
 Dollars)...............................
Average Compliance Cost Per Small-Entity            $453            $212
 Contractor (in 2021 Dollars)...........
Ratio of Total Compliance Cost/Total              0.0211          0.0074
 Revenue (in Percent)...................
Average of the Ratios of Compliance Cost/         0.0460          0.0212
 Revenue (in Percent)...................
------------------------------------------------------------------------

    In conclusion, MSHA determined that the rule does not have a 
significant effect on either small-entity mining controllers or small-
entity mining contractors. MSHA therefore certifies that this final 
rule does not have a significant economic impact on a substantial 
number of small entities.

V. Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) 
provides for the Federal Government's collection, use, and 
dissemination of information. The goals of the PRA include minimizing 
paperwork and reporting burdens and ensuring the maximum possible 
utility from the information that is collected under 5 CFR part 1320. 
The PRA requires Federal agencies to obtain approval from OMB before 
requesting or requiring ``a collection of information'' from the 
public.
    MSHA determined that this final rule creates a new information 
collection burden for the mining community. However, the final rule 
does not contain changes that transfer burden from, or add burden to, 
existing information

[[Page 87921]]

collections because the paperwork requirements in this rule are 
applicable to only the new information collection discussed below. MSHA 
expects that some mine operators may use existing information 
collections to help the development or implementation of a written 
safety program at their mine. For example, under OMB No. 1219-0089, 
Safety Defects; Examination, Correction, and Records, MNM operators 
record inspections of surface mobile equipment before equipment is 
placed in operation and when equipment is removed from service to be 
repaired before use is resumed. Under OMB No. 1219-0083, Surface Coal 
Mines Daily Inspection; Certified Person; Reports of Inspection, coal 
mine operators record reports of hazardous conditions in active work 
areas of surface operations along with a description of any corrective 
actions taken. Some operators may incorporate these existing 
information collections, if applicable, into their safety program for 
surface mobile equipment because they have determined the existing 
information collections would support the safety program's development 
or implementation. Hence, only new requirements from this final rule 
will be recorded under this new information collection and there will 
be no change to existing information collections.
    Once OMB completes its review of MSHA's new information collection, 
the Agency will publish a notice on the new information collection 
under the Information Collection Review (ICR) 1219-0155. (The regulated 
community is not required to respond to any collection of information 
unless it displays a current, valid, OMB control number.)

A. New Information Collection Under ``Safety Program for Surface Mobile 
Equipment''

    Under this final rule, new burdens will apply to operators and 
independent contractors who are subject to 30 CFR part 45, as discussed 
below.
    Section 56.23003(a) requires operators of surface metal and 
nonmetal mines to develop, implement, and update a written safety 
program for surface mobile equipment to reduce the number and rates of 
accidents, injuries, and fatalities. This subpart applies to all 
surface mobile equipment at surface metal and nonmetal mines. Such a 
program will include actions the operator will take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that enhance safety at the mine and evaluate whether to 
adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    Section 57.23003(a) requires operators of underground metal and 
nonmetal mines to develop, implement, and update a written safety 
program for surface mobile equipment to reduce the number and rates of 
accidents, injuries, and fatalities. This subpart applies to all 
surface mobile equipment at surface areas of underground metal and 
nonmetal mines. Such a program will describe actions the operator will 
take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that enhance safety at the mine and evaluate whether to 
adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    Section 77.2103(a) requires operators of surface coal mines and 
surface work areas of underground coal mines to develop, implement, and 
update a written safety program for surface mobile equipment to reduce 
the number and rates of accidents, injuries, and fatalities. This 
subpart applies to all surface mobile equipment at surface coal mines 
and surface work areas of underground coal mines. Such a program will 
describe actions the operator will take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that enhance safety at the mine and evaluate whether to 
adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    In addition, Sec. Sec.  56.23003(b), 57.23003(b), and 77.2103(b) 
require evaluation and updates to the written safety program at least 
annually, or as mining conditions or practices change that may 
adversely affect the health and safety of miners or other persons, as 
accidents or injuries occur, or as surface mobile equipment changes or 
modifications are made.

B. Information Collection Requirements

    I. Type of Review: New Collection.
    OMB Control Number: 1219-0155.
    1. Title: Safety Program for Surface Mobile Equipment.
    2. Description of the ICR: This final rule on safety program for 
surface mobile equipment contains collection of information 
requirements that will assist miners, operators, and independent 
contractors in identifying risks to their safety and help reduce 
injuries and fatalities at mines.
    There are provisions of this final rule that have different burden 
hours, burden costs, and responses each year. Therefore, MSHA shows the 
estimates of burden hours, burden costs, and responses in three 
separate years.
    3. Summary of the Collection of Information:
Sections 56.23003(a), 57.23003(a), 77.2103(a)--Developing and 
Implementing Written Safety Program
    ICR. Final Sec. Sec.  56.23003(a), 57.23003(a), and 77.2103(a) 
require operators to develop and implement written safety programs.
    Number of respondents. For Sec. Sec.  56.23003(a), 57.23003(a), and 
71.2103(a), the respondents consist of operators and independent 
contractors owning and using surface mobile equipment since they will 
be responsible for developing and implementing the written safety 
program for surface mobile equipment.
    MSHA estimates that, based on its 2021 data, a total of 17,133 
respondents (12,394 operators and 4,739 part 45 independent 
contractors) will develop a written safety program for surface mobile 
equipment in the first year of implementation. MSHA estimated that 
12,394 are surface mines and underground mines with surface areas, so 
the operators of those mines are assumed to comply with this rule. MSHA 
estimates that some operators may need to update, enhance, or even 
develop portions of this written safety program to meet current 
requirements. MSHA estimated that no additional recordkeeping costs 
will be generated by the activities associated with training because 
this activity is already being performed during compliance efforts for 
existing training standards.

[[Page 87922]]

    Annual number of responses. The estimated average annual number of 
responses will be 17,133.
    Estimated annual burden. The total burden arising from the 
development of the safety program in the first year of implementation 
is estimated to be 682,833 hours, which includes 297,687 hours to list 
the actions the operator will take to conduct the mine-specific hazard 
analysis and technology evaluation components of the safety program, 
383,860 hours for listing the actions operators will take to develop a 
maintenance schedule for surface mobile equipment as part of the 
written safety program (if needed), as well as 1,285 hours to make 
available and copy the written safety program. An average burden per 
respondent is estimated to be 39.85 hours to develop a written safety 
program for surface mobile equipment in the first year.
Sections 56.23003(b), 57.23003(b), and 71.2103(b)--Annual Updates to 
the Written Safety Program
    ICR. Final Sec. Sec.  56.23003(b), 57.23003(b), and 71.2103(b) 
require the responsible person to evaluate and update the written 
safety program for the mine at least annually, or as mining conditions 
or practices change that may adversely affect the health and safety of 
miners or other persons, as accidents or injuries occur, or as surface 
mobile equipment changes or modifications are made.
    Number of respondents. For Sec. Sec.  56.23003(b), 57.23003(b), and 
71.2103(b), the respondents will consist of all operators and 
contractors who have developed a written safety program for surface 
mobile equipment. MSHA estimates that a total of 17,133 mine operators 
and independent contractors will subsequently update a written safety 
program for surface mobile equipment in years two and three. The 
respondents will update at least annually, or as mining conditions or 
practices change that may adversely affect the health and safety of 
miners or other persons, as accidents or injuries occur, or as surface 
mobile equipment changes or modifications are made.
    Annual number of responses. The estimated average annual number of 
responses will be 17,133.
    Estimated annual burden. The total burden arising from the annual 
and other updating of the safety program will be 259,834 hours in the 
second and third years of implementation, 129,917 hours each year. This 
annual burden includes updates to the written safety program arising 
from changing conditions at mine sites, surface mobile equipment unit 
updates, as well as making available and copying the written safety 
program. The estimated annual burden per respondent is 7.58 hours.
    Besides the development and update of the written safety program, 
no additional information collection cost is expected. Information 
collection associated with training requirements in this final rule is 
covered under existing regulations in 30 CFR parts 46, 48, and 77.
Total Recordkeeping and Documentation Burden for the Safety Program for 
Surface Mobile Equipment Rule

                       Table V-1--Estimated Annual Recordkeeping and Documentation Burden
----------------------------------------------------------------------------------------------------------------
                                                 Annual  number                  Annual  burden     Estimated
                      Year                             of        Annual  number        per        annual burden
                                                   respondents    of  responses    respondent        (Hours)
----------------------------------------------------------------------------------------------------------------
Year 1.........................................          17,133          17,133           39.85          682,833
Year 2.........................................          17,133          17,133            7.58          129,917
Year 3.........................................          17,133          17,133            7.58          129,917
                                                ----------------------------------------------------------------
    3-Year Total...............................          17,133          51,399           55.02          942,666
    Annual Average.............................          17,133          17,133           18.34          314,222
----------------------------------------------------------------------------------------------------------------

    The cost estimates of information collection burden are calculated 
as follows. In the first year, the average burden per respondent for 
developing a safety program, combining hazard analysis and technology 
evaluation, identifying actions operators will take to maintain and 
repair equipment and train miners as well as making available and 
copying the written safety program, is 39.85 hours for a total of 
682,833 burden hours in Year 1. In Years 2 and 3, the average burden 
per respondent for updating a safety program is 7.58 hours, for a total 
of 129,917 burden hours in Year 2 and 129,917 burden hours in Year 3.
    MSHA determined the hourly wage rates through data from the U.S. 
Department of Labor, Bureau of Labor Statistics (BLS), Occupational 
Employment and Wage Statistics (OEWS) published May 2021. Annual Burden 
Hours are summarized in Table V-2.

                                        Table V-2--Wage and Hour Burdens
----------------------------------------------------------------------------------------------------------------
                                                  Loaded hourly   Year 1  burden  Year 2  burden  Year 3  burden
                   Occupation                      wage rate *         hours           hours           hours
----------------------------------------------------------------------------------------------------------------
Mining Supervisor, MNM.........................           $61.41      241,085.00      103,182.50      103,182.50
Mining Supervisor, Coal........................            71.79       21,198.80        7,989.28        7,989.28
Maintenance and Mechanic, MNM..................            42.22      307,802.50  ..............  ..............
Maintenance and Mechanic, Coal.................            47.70       33,406.80  ..............  ..............
Occupational Health & Safety Specialist, MNM...            59.06       16,318.40        4,561.34        4,561.34
Occupational Health & Safety Specialist, Coal..            68.29        8,422.40        2,354.24        2,354.24
Clerk, MNM.....................................            35.58          858.78          858.78          858.78
Clerk, Coal....................................            35.01           70.80           70.80           70.80
Clerk, Contractor..............................            35.45          355.43          355.43          355.43
Mining Supervisor, Contractor..................            63.70       10,662.75       10,544.28       10,544.28
Maintenance and Mechanic, Contractor...........            43.43       42,651.00  ..............  ..............

[[Page 87923]]

 
Occupational Health & Safety Specialist,                   61.09  ..............  ..............  ..............
 Contractor....................................
                                                ----------------------------------------------------------------
    Total (Rounded)............................  ...............         682,833         129,917         129,917
----------------------------------------------------------------------------------------------------------------
* Loaded hourly wages are mean wages that are increased by a benefits multiplier of 1.488 plus a separate
  overhead multiplier of 1.01.

    The resulting annual burden cost is summarized in Table V-3.

       Table V-3--Summary of Information Collection Burden for Safety Program for Surface Mobile Equipment
----------------------------------------------------------------------------------------------------------------
                                                                                                      Annual
                                                      Year 1          Year 2          Year 3          average
----------------------------------------------------------------------------------------------------------------
Number of Respondents...........................          17,133          17,133          17,133          17,133
Number of Responses.............................          17,133          17,133          17,133          17,133
Number of Burden Hours (Rounded)................         682,833         129,917         129,917         314,222
Respondent or Recordkeeping Costs (Rounded).....         $25,700         $25,700         $25,700         $25,700
----------------------------------------------------------------------------------------------------------------

    1. Affected Public: Business or other for-profit.
    2. Estimated Number of Respondents: 17,133 respondents in the first 
year; 17,133 respondents in the second year; and 17,133 respondents in 
the third year.
    3. Frequency: On occasion.
    4. Estimated Number of Responses: 17,133 responses in the first 
year; 17,133 responses in the second year; and 17,133 responses in the 
third year.
    5. Estimated Number of Burden Hours: 682,833 hours in the first 
year; 129,917 hours in the second year; and 129,917 hours in the third 
year.
    6. Estimated Respondent or Recordkeeper Hour Burden Costs: $25,700 
in the first year; $25,700 in the second year; and $25,700 in the third 
year.
    For a detailed summary of the burden hours and related costs by 
provision, see the FRIA accompanying the final rule. The FRIA includes 
the estimated costs and assumptions for the paperwork requirements 
related to this final rule.
    MSHA received comments on the information collection requirements 
contained in the proposed rule (86 FR 50496). These comments are 
addressed in the Supporting Statement for the information collection 
requirements for this final rule. The Information Collection Supporting 
Statement is available at http://www.reginfo.gov/public/do/PRAMain, on 
MSHA's website at http://www.msha.gov/regs/fedreg/informationcollection/informationcollection.asp, and at http://www.regulations.gov. A copy of the Statement is also available from 
MSHA by request to S. Aromie Noe at <a href="/cdn-cgi/l/email-protection#fcb29399d2af93929bd1bd99d2bdbc989390d29b938a"><span class="__cf_email__" data-cfemail="0e40616b205d616069234f6b204f4e6a616220696178">[email protected]</span></a>, by phone 
request to 202-693-9440, or by facsimile to 202-693-9441. These are not 
toll-free numbers.

VI. Other Regulatory Considerations

A. National Environmental Policy Act of 1969

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321 et seq.), requires each Federal agency to consider the 
environmental effects of final actions and to prepare an Environmental 
Impact Statement on major actions significantly affecting the quality 
of the environment. MSHA has reviewed the final rule in accordance with 
NEPA requirements, the regulations of the Council on Environmental 
Quality (40 CFR part 1500), and the Department of Labor's NEPA 
compliance procedures (29 CFR part 11). As a result of this review, 
MSHA has determined that this final rule will not have a significant 
environmental impact. Accordingly, MSHA has not conducted an 
environmental assessment nor provided an environmental impact 
statement.

B. The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Act) (2 U.S.C. 1501 et 
seq.) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. In particular, the Act addresses 
actions that may result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million (adjusted annually for inflation) or more in any 1 year. MSHA 
has reviewed the final rule and has determined that it does not result 
in such an expenditure. Accordingly, the Unfunded Mandates Reform Act 
of 1995 requires no further Agency action or analysis.

C. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Agency action on family well-being. MSHA has determined that the 
final rule has no effect on family stability or safety, marital 
commitment, parental rights and authority, or income or poverty of 
families and children, as defined in the Act. Accordingly, MSHA 
determines that the final rule does not impact family well-being, as 
defined in the Act.

D. Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) allows Congress 
to review ``major'' rules issued by federal agencies. The Congressional 
Review Act states that, before a rule may take effect, the agency 
issuing the rule must submit the rule, and certain related information, 
to each House of Congress and the Comptroller General. 5 U.S.C. 
801(a)(1). The Congressional Review Act defines a major rule as one 
that has resulted in or is likely to result in (1) an annual effect on 
the economy of $100 million or more; (2) a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, or 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises

[[Page 87924]]

in domestic and export markets. 5 U.S.C. 804(2).
    Pursuant to the Congressional Review Act, this rule is not a 
``major rule,'' as defined by 5 U.S.C. 804(2). However, pursuant to the 
Congressional Review Act, MSHA will submit a copy of this final rule to 
both Houses of Congress and to the Comptroller General.

E. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    E.O. 12630 requires Federal agencies to ``identify the takings 
implications of proposed regulatory actions . . . .'' MSHA has 
determined that the final rule does not include a regulatory or policy 
action with takings implications. Accordingly, E.O. 12630 requires no 
further Agency action or analysis.

F. Executive Order 12988: Civil Justice Reform

    Section 3 of E.O. 12988 contains requirements for Federal agencies 
promulgating new regulations or reviewing existing regulations to 
minimize litigation by eliminating drafting errors and ambiguity, 
providing a clear legal standard for affected conduct rather than a 
general standard, promoting simplification, and reducing burden. MSHA 
has reviewed the final rule and has determined that it meets the 
applicable standards provided in E.O. 12988 to minimize litigation and 
undue burden on the Federal court system. Accordingly, the final rule 
meets the applicable standards provided in E.O. 12988, Civil Justice 
Reform.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    E.O. 13045 requires Federal agencies submitting covered regulatory 
actions to OMB's Office of Information and Regulatory Affairs (OIRA) 
for review, pursuant to E.O. 12866, to provide OIRA with (1) an 
evaluation of the environmental health or safety effects that the 
planned regulation may have on children, and (2) an explanation of why 
the planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the agency. In E.O. 
13045, ``covered regulatory action'' is defined as rules that may (1) 
be significant under E.O. 12866, supplemented by E.O. 14094, (i.e., a 
rulemaking that has an annual effect on the economy of $200 million or 
more or would adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local or tribal governments or 
communities), and (2) concern an environmental health risk or safety 
risk that an agency has reason to believe may disproportionately affect 
children. Environmental health risks and safety risks refer to risks to 
health or to safety that are attributable to products or substances 
that the child is likely to come in to contact with or ingest through 
air, food, water, soil, or product use or exposure.
    This final rule is not subject to E.O. 13045 because it is not 
significant under section 3(f)(1) of E.O. 12866, and because it does 
not concern an environmental health risk or safety risk that may 
disproportionately affect children. This final rule is requiring that 
operators develop, implement, and update a written safety program for 
surface mobile equipment (excluding belt conveyors) at surface mines 
and surface areas of underground mines. The written safety program 
includes actions operators will take to identify hazards and risks to 
reduce accidents, injuries, and fatalities related to surface mobile 
equipment. This rule does not concern risks to health or to safety that 
are attributable to products or substances that children are likely to 
come in to contact with or ingest through air, food, water, soil, or 
product use or exposure. Accordingly, E.O. 13045 requires no further 
Agency action or analysis.

H. Executive Order 13132: Federalism

    MSHA has determined that the final rule does not have federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Accordingly, E.O. 13132 requires no 
further Agency action or analysis.

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    MSHA has determined that the final rule does not have tribal 
implications because it does not have substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes. 
Accordingly, E.O. 13175 requires no further Agency action or analysis.

J. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to publish a Statement of Energy 
Effects for ``significant energy actions'' which are agency actions 
that are ``likely to have a significant adverse effect on the supply, 
distribution, or use of energy'' including a ``shortfall in supply, 
price increases, and increased use of foreign supplies.'' MSHA reviewed 
the final rule for its impact on the production of coal and uranium 
mining. The final rule results in annualized costs of approximately 
$12.6 million (in 2021 dollars, undiscounted) to covered surface mines 
and surface areas of underground mines, though most of these costs will 
be incurred in MNM mining that does not involve uranium mining (nor 
coal mining). MSHA therefore determined that such costs do not have any 
substantive effect on coal and uranium mining. Because the final rule 
does not result in a significant adverse effect on the supply, 
distribution, or use of energy, it is not a ``significant energy 
action.'' Accordingly, E.O. 13211 requires no further Agency action or 
analysis.

K. Executive Order 13985: Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government; Executive Order 
14091: Further Advancing Racial Equity and Support for Underserved 
Communities Through the Federal Government

    E.O. 13985 provides ``that the Federal Government should pursue a 
comprehensive approach to advancing equity for all, including people of 
color and others who have been historically underserved, marginalized, 
and adversely affected by persistent poverty and inequality.'' E.O. 
13985 defines ``equity'' as ``consistent and systematic fair, just, and 
impartial treatment of all individuals, including individuals who 
belong to underserved communities that have been denied such treatment, 
such as Black, Latino, and Indigenous and Native American persons, 
Asian Americans and Pacific Islanders and other persons of color; 
members of religious minorities; lesbian, gay, bisexual, transgender, 
and queer (LGBTQ+) persons; persons with disabilities; persons who live 
in rural areas; and persons otherwise adversely affected by persistent 
poverty or inequality.'' To assess the impact of the final rule on 
equity, MSHA considered two factors: (1) the racial/ethnic distribution 
in mining in NAICS 212

[[Page 87925]]

(which does not include oil and gas extraction) compared to the racial/
ethnic distribution of the U.S. workforce (Table VI-1), and (2) the 
extent to which mining may be concentrated within general mining 
communities (Table VI-2).
    In 2008, NIOSH conducted a survey of mines, which entailed sending 
a survey packet to 2,321 mining operations to collect a wide range of 
information, including demographic information on miners. NIOSH's 2012 
report, entitled ``National Survey of the Mining Population: Part I: 
Employees'' reported the findings of this survey.\22\ Race and 
ethnicity information about U.S. mine workers is presented in Table VI-
1. Of all mine workers, including miners as well as administrative 
employees at mines, 93.4 percent of mine workers were white, compared 
to 80.6 percent of all U.S workers.\23\ There were larger percentages 
of American Indian or Alaska Native and Native Hawaiian or Other 
Pacific Islander people in the mining industry compared to all U.S. 
workers, while there were smaller percentages of Asian, Black or 
African American, and Hispanic/Latino people in the mining industry 
compared to all U.S. workers.
---------------------------------------------------------------------------

    \22\ National Institute for Occupational Safety and Health 
(NIOSH), ``National Survey of the Mining Population: Part I: 
Employees,'' June 2012. https://www.cdc.gov/niosh/mining/works/coversheet776.html.
    \23\ National data on workers by race were not available for the 
year 2008; comparable data for 2012 are provided for comparison 
under the assumption that there would not be major differences in 
distributions between these 2 years.
---------------------------------------------------------------------------

    Section 6 of E.O. 14091 further provides that agencies are ``to 
create equitable economic opportunity and advance projects that build 
community wealth'' in rural America. The final rule helps miners in 
rural areas by improving safety and health at their mines. Table VI-2 
shows that there are 22 mining communities, defined as counties where 
at least 2 percent of the population is working in the mining 
industry.\24\ Although the total population in this table represents 
only 0.15 percent of the U.S. population, it represents 12.0 percent of 
all mine workers. The average per capita income in these communities in 
2020, $47,977,\25\ was lower than the U.S. average, $59,510, 
representing 80.6 percent of the U.S. average. However, each county's 
average per capita income varies substantially, ranging from 56.4 
percent of the U.S. average to 146.8 percent.
---------------------------------------------------------------------------

    \24\ Although 2 percent may appear to be a small number for 
identifying a mining community, one might consider that if the 
average household with one parent working as a miner has five 
members in total, then approximately 10 percent of households in the 
area would be directly associated with mining. While 10 percent may 
also appear small, this refers to the county. There are likely 
particular areas that have a heavier concentration of mining 
households.
    \25\ This is a simple average rather than a weighted average by 
population.
---------------------------------------------------------------------------

    This final rule is requiring that operators develop, implement, and 
update a written safety program for surface mobile equipment (excluding 
belt conveyors) at surface mines and surface areas of underground 
mines. The written safety program includes actions operators will take 
to identify hazards and risks to reduce accidents, injuries, and 
fatalities related to surface mobile equipment. MSHA determined that 
the final rule is consistent with the goals of E.O. 13985 and supports 
the advancement of equity for all workers at mines, including those who 
are historically underserved and marginalized.

                             Table VI-1--Racial and Ethnic Distribution of Miners *
                                                     [2012]
----------------------------------------------------------------------------------------------------------------
                                                             As a percent of total
                                    Number of miners  in        miners who self-      Percent of all workers  in
                                  mining  (except oil and     identified in these       the United States  for
                                     gas)  (NAICS 212)      categories (latest data    comparison  (latest data
                                                                   for 2008)                  2012) ****
----------------------------------------------------------------------------------------------------------------
Ethnicity:
    Hispanic/Latino.............                   26,622                       12.1                        15.0
    Non-Hispanic or Latino......                  192,839                       87.9                        85.0
                                 -------------------------------------------------------------------------------
        Total...................                  219,461                      100.0                       100.0
----------------------------------------------------------------------------------------------------------------
Race: **
    American Indian or Alaska                       4,050                        1.9                         0.8
     Native ***.................
    Asian.......................                      183                        0.1                         5.4
    Black or African American...                    8,893                        4.3                        13.0
    Native Hawaiian or Other                          634                        0.3                         0.2
     Pacific Islander...........
    White.......................                  194,016                       93.4                        80.6
                                 -------------------------------------------------------------------------------
        Total...................                  207,776                      100.0                       100.0
----------------------------------------------------------------------------------------------------------------
* The term ``miners'' includes miners and other workers at mines such as administrative employees.
** Does not include miners who did not self-report in one of these categories. Some of the surveyed miners may
  not have self-reported in one of these categories if they are affiliated with more than one race, or if they
  chose not to respond to this survey question.
*** Includes miners who self-identified as an American Indian or Alaskan Native as a single race, not in
  combination with any other races. No other data on miners in this racial group were available from this
  source. In other employment statistics often reported on American Indians and Alaska Natives, their population
  is based on self-reporting as being American Indian or Alaska Native in combination with any other race, which
  has resulted in the reporting of much higher employment levels. See BLS, Monthly Labor Review, ``Alternative
  Measurements of Indian Country: Understanding Their Implications for Economic, Statistical, and Policy
  Analysis,'' https://www.bls.gov/opub/mlr/2021/article/alternative-measurements-of-indian-country.htm.
**** More recent data from the 2020 Decennial Census were not available in September 2022.
Sources: National Institute for Occupational Safety and Health (NIOSH). 2012a. National Survey of the Mining
  Population Mining Publication: Part 1: Employees, DHHS (NIOSH) Pub. No. 2012-152, June 2012; U.S. Census
  Bureau, 2012 American Community Survey (ACS).


[[Page 87926]]


   Table VI-2--Mining Counties: Counties in the United States With Relatively High Concentrations of Miners *
                                  [At least 2 percent of the county population]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Estimated
                                                          Number of miners      Population of       percent of
              Number                      County           (first quarter      county  (latest      population
                                                               2022)            data in 2021)         who are
                                                                                                      miners
----------------------------------------------------------------------------------------------------------------
1................................  White Pine County,   1,288..............  9,182..............            14.0
                                    Nevada.
2................................  Pershing County,     771................  6,741..............            11.4
                                    Nevada.
3................................  Humboldt County,     1,549..............  17,648.............             8.8
                                    Nevada.
4................................  Campbell County,     3,547..............  46,401.............             7.6
                                    Wyoming.
5................................  Winkler County,      513................  7,415..............             6.9
                                    Texas.
6................................  Mercer County,       555................  8,323..............             6.7
                                    North Dakota.
7................................  Chase County,        166................  2,598..............             6.4
                                    Kansas.
8................................  Shoshone County,     723................  13,612.............             5.3
                                    Idaho.
9................................  Logan County, West   1,643..............  31,909.............             5.1
                                    Virginia.
10...............................  Sweetwater County,   2,050..............  41,614.............             4.9
                                    Wyoming.
11...............................  Glasscock County,    56.................  1,149..............             4.9
                                    Texas.
12...............................  Livingston County,   431................  8,959..............             4.8
                                    Kentucky.
13...............................  Buchanan County,     946................  19,816.............             4.8
                                    Virginia.
14...............................  McDowell County,     660................  18,363.............             3.6
                                    West Virginia.
15...............................  Big Horn County,     413................  11,632.............             3.6
                                    Wyoming.
16...............................  Sevier County, Utah  601................  21,906.............             2.7
17...............................  Boone County, West   582................  21,312.............             2.7
                                    Virginia.
18...............................  Moffat County,       349................  13,185.............             2.6
                                    Colorado.
19...............................  Nye County, Nevada.  1,062..............  43,946.............             2.4
20...............................  Raleigh County,      1,647..............  73,771.............             2.2
                                    West Virginia.
21...............................  Wyoming County,      456................  21,051.............             2.2
                                    West Virginia.
22...............................  Elko County, Nevada  1,090..............  53,915.............             2.0
----------------------------------------------------------------------------------------------------------------
Total.................................................  20,963.............  494,448............             4.2
----------------------------------------------------------------------------------------------------------------
All U.S. Counties.....................................  174,387............  331,893,745........  ..............
Miners in Mining Counties as a Percent of All U.S.      12.0%..............  ...................  ..............
 Miners.
Population of Mine Counties as a Percent of U.S.        ...................  0.15%..............  ..............
 Population.
----------------------------------------------------------------------------------------------------------------
* The term ``miners'' includes miners and other workers at mines such as administrative employees.
Source: Bureau of Labor Statistics (BLS), Quarterly Employment and Wages First Quarter 2022 (2022); Bureau of
  Economic Analysis, Personal Income by County, Metro, and Other Areas 2020 (2020); U.S. Census Bureau, ``Annual
  Estimates of the Resident Population for Counties: April 1, 2020, to July 1, 2021 (CO-EST2021-POP).''
  Census.gov. Accessed DATE. Available at: https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html; U.S. Census Bureau, Quick Facts, available at: https://www.census.gov/quickfacts/fact/table/US/PST045221 table/US/PST045221 (accessed DATE).

VII. References

American Society of Safety Professionals (ASSP), Occupational Health 
and Safety Management Systems, ANSI/ASSP Z10-2012, (R2017).
International Standards Organization (ISO), Occupational Health and 
Safety Management Systems--Requirements With Guidance for Use (ISO 
45001:2018).
National Mining Association, CORESafety and Health Management System
U.S Department of Labor, Occupational Safety and Health 
Administration (OSHA), Recommended Practices for Safety and Health 
Programs (https://www.osha.gov/safety-management).
U.S. Department of Transportation, 49 CFR part 270--System Safety 
Program.

List of Subjects

30 CFR Parts 56 and 57

    Metal and nonmetal mining, Mine safety and health, Surface mining, 
Mobile equipment safety program, Reporting and recordkeeping 
requirements, and Underground mining.

30 CFR Part 77

    Coal mining, Mine safety and health, Surface mining, Mobile 
equipment safety program, Reporting and recordkeeping requirements, and 
Underground mining.

Christopher J. Williamson
Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, as amended by the Mine 
Improvement and New Emergency Response Act of 2006, chapter I of title 
30 of the Code of Federal Regulations is amended as follows:

SUBCHAPTER K--METAL AND NONMETAL MINE SAFETY AND HEALTH

PART 56--SAFETY AND HEALTH STANDARDS--SURFACE METAL AND NONMETAL 
MINES

0
1. The authority citation for part 56 continues to read as follows:

    Authority:  30 U.S.C. 811.


0
2. Add subpart T to part 56 to read as follows:

Subpart T--Safety Program for Surface Mobile Equipment

Sec.
56.23000 Purpose and scope.
56.23001 Definitions.
56.23002 Written safety program.
56.23003 Requirements for written safety program.
56.23004 Record and inspection.

[[Page 87927]]

Sec.  56.23000  Purpose and scope.

    This subpart requires operators to develop, implement, and update a 
written safety program for surface mobile equipment to reduce the 
number and rates of accidents, injuries, and fatalities. This subpart 
applies to surface mobile equipment at surface metal and nonmetal 
mines. The purpose of this safety program is to promote and support a 
positive safety culture and improve miners' safety at the mine.


Sec.  56.23001  Definitions.

    The following definitions apply in this subpart--
    Responsible person means a person with authority and responsibility 
to evaluate and update a written safety program for surface mobile 
equipment.
    Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved, 
and any powered equipment that transports people, equipment, or 
materials, excluding belt conveyors, at surface metal and nonmetal 
mines.


Sec.  56.23002  Written safety program.

    (a) Each operator shall develop and implement a written safety 
program for surface mobile equipment that contains the elements in this 
subpart, no later than July 17, 2024.
    (b) Each operator shall designate at least one responsible person 
to evaluate and update the written safety program, no later than July 
17, 2024.


Sec.  56.23003  Requirements for written safety program.

    (a) The operator shall develop and implement a written safety 
program that includes actions the operator will take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that can enhance safety at the mine and evaluate whether 
to adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    (b) The responsible person shall evaluate and update the written 
safety program at least annually, or as mining conditions or practices 
change that may adversely affect the health and safety of miners or 
other persons, as accidents or injuries occur, or as surface mobile 
equipment changes or modifications are made.
    (c) The operator shall solicit input from miners and their 
representatives in developing and updating the written safety program.


Sec.  56.23004  Record and inspection.

    (a) The operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary and 
provide a copy upon request.
    (b) The operator shall make the written safety program available 
for inspection by miners and their representatives and, at no cost, 
provide a copy upon request.

PART 57--SAFETY AND HEALTH STANDARDS--UNDERGROUND METAL AND 
NONMETAL MINES

0
3. The authority citation for part 57 continues to read as follows:

    Authority:  30 U.S.C. 811.


0
4. Add subpart U to part 57 to read as follows:

Subpart U--Safety Program for Surface Mobile Equipment

Sec.
57.23000 Purpose and scope.
57.23001 Definitions.
57.23002 Written safety program.
57.23003 Requirements for written safety program.
57.23004 Record and inspection.


Sec.  57.23000  Purpose and scope.

    This subpart requires operators to develop, implement, and update a 
written safety program for surface mobile equipment to reduce the 
number and rates of accidents, injuries, and fatalities. This subpart 
applies to surface mobile equipment at surface areas of underground 
metal and nonmetal mines. The purpose of this safety program is to 
promote and support a positive safety culture and improve miners' 
safety at the mine.


Sec.  57.23001  Definitions.

    The following definitions apply in this subpart--
    Responsible person means a person with authority and responsibility 
to evaluate and update a written safety program for surface mobile 
equipment.
    Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved, 
and any powered equipment that transports people, equipment, or 
materials, excluding belt conveyors, at surface areas of underground 
metal and nonmetal mines.


Sec.  57.23002  Written safety program.

    (a) Each operator shall develop and implement a written safety 
program for surface mobile equipment that contains the elements in this 
subpart, no later than July 17, 2024.
    (b) Each operator shall designate at least one responsible person 
to evaluate and update the written safety program, no later than July 
17, 2024.


Sec.  57.23003  Requirements for written safety program.

    (a) The operator shall develop and implement a written safety 
program that includes actions the operator will take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that can enhance safety at the mine and evaluate whether 
to adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    (b) The responsible person shall evaluate and update the written 
safety program at least annually, or as mining conditions or practices 
change that may adversely affect the health and safety of miners or 
other persons, as accidents or injuries occur, or as surface mobile 
equipment changes or modifications are made.
    (c) The operator shall solicit input from miners and their 
representatives in developing and updating the written safety program.


Sec.  57.23004  Record and inspection.

    (a) The operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary and 
provide a copy upon request.
    (b) The operator shall make the written safety program available 
for inspection by miners and their representatives and, at no cost, 
provide a copy upon request.

SUBCHAPTER O--COAL MINE SAFETY AND HEALTH

PART 77--MANDATORY SAFETY STANDARDS, SURFACE COAL MINES AND SURFACE 
WORK AREAS OF UNDERGROUND COAL MINES

0
5. The authority citation for part 77 continues to read as follows:

    Authority:  30 U.S.C. 811.


[[Page 87928]]



0
6. Add subpart V to part 77 to read as follows:

Subpart V--Safety Program for Surface Mobile Equipment

Sec.
77.2100 Purpose and scope.
77.2101 Definitions.
77.2102 Written safety program.
77.2103 Requirements for written safety program.
77.2104 Record and inspection.


Sec.  77.2100  Purpose and scope.

    This subpart requires operators to develop, implement, and update a 
written safety program for surface mobile equipment to reduce the 
number and rates of accidents, injuries, and fatalities. This subpart 
applies to surface mobile equipment at surface coal mines and surface 
work areas of underground coal mines. The purpose of this safety 
program is to promote and support a positive safety culture and improve 
miners' safety at the mine.


Sec.  77.2101  Definitions.

    The following definitions apply in this subpart--
    Responsible person means a person with authority and responsibility 
to evaluate and update a written safety program for surface mobile 
equipment.
    Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved, 
and any powered equipment that transports people, equipment, or 
materials, excluding belt conveyors, at surface coal mines and surface 
work areas of underground coal mines.


Sec.  77.2102  Written safety program.

    (a) Each operator shall develop and implement a written safety 
program for surface mobile equipment that contains the elements in this 
subpart, no later than July 17, 2024.
    (b) Each operator shall designate at least one responsible person 
to evaluate and update the written safety program, no later than July 
17, 2024.


Sec.  77.2103  Requirements for written safety program.

    (a) The operator shall develop and implement a written safety 
program that includes actions the operator will take to:
    (1) Identify and analyze hazards and reduce the resulting risks 
related to the movement and the operation of surface mobile equipment;
    (2) Develop and maintain procedures and schedules for routine 
maintenance and non-routine repairs for surface mobile equipment;
    (3) Identify currently available and newly emerging feasible 
technologies that can enhance safety at the mine and evaluate whether 
to adopt them; and
    (4) Train miners and other persons at the mine necessary to perform 
work to identify and address or avoid hazards related to surface mobile 
equipment.
    (b) The responsible person shall evaluate and update the written 
safety program at least annually, or as mining conditions or practices 
change that may adversely affect the health and safety of miners or 
other persons, as accidents or injuries occur, or as surface mobile 
equipment changes or modifications are made.
    (c) The operator shall solicit input from miners and their 
representatives in developing and updating the written safety program.


Sec.  77.2104  Record and inspection.

    (a) The operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary and 
provide a copy upon request.
    (b) The operator shall make the written safety program available 
for inspection by miners and their representatives and, at no cost, 
provide a copy upon request.

[FR Doc. 2023-27640 Filed 12-19-23; 8:45 am]
BILLING CODE 4520-43-P


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